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A Fragment on Government

Jeremy Bentham

1776

Copyright © Jonathan Bennett 2017. All rights reserved

[Brackets] enclose editorial explanations. Small ·dots· enclose material that has been added, but can be readas though it were part of the original text. Occasional •bullets, and also indenting of passages that are notquotations, are meant as aids to grasping the structure of a sentence or a thought. Every four-point ellipsis. . . . indicates the omission of a brief passage that seems to present more difficulty than it is worth. Longeromissions are reported between brackets in normal-sized type. —For more intensive study of this work, go tothe edition of it by J.H.Burns and H.L.A.Hart (Athlone Press). Some of their footnotes will be borrowed in thepresent version, acknowledged by the label ‘B&H’. —A small volume published by Cambridge University Press,with an Introduction by Ross Harrison, contains the Fragment and sections III and IV of the Preface written forthe second edition.

First launched: 2020

A Fragment on Government Jeremy Bentham

Contents

Preface 1

Introduction 14

Chapter 1: Formation of Government 16

Chapter 2: Forms of Government 29

Chapter 3: British Constitution 36

Chapter 4: Right of the Supreme Power to Make laws 43

Chapter 5: Duty of the Supreme Power to Make laws 54

Appendix: Preface written 46 years later 60

A Fragment on Government Jeremy Bentham

Glossary

affection: In the early modern period, ‘affection’ couldmean ‘fondness’, as it does today; but it was also oftenused, as it is in this work, to cover every sort of pro or conattitude—desires, approvals, likings, disapprovals, dislikings,etc.

censure: In one remark (not included is this version) Ben-tham says he is using this word in a ‘neutral’ sense, in whichto ‘censure’ something is to look at it with a critical eye, notnecessarily unfavourably, this being the role of the ‘censor’announced on page 3. Most of his uses of it in this workseem to give it the meaning that we do, which is not neutral;but the neutral meaning may sometimes be hovering in thebackground.

endowment: Personal quality.

harmful(ness): Used throughout to replace Bentham’s ‘mis-chievous(ness)’. See entry below on mischief.

invidious: quarrel-producing.

juncture: ‘a joint, a junction’ (OED) in the course of events.

method: In a few places Bentham uses ‘method’ in the senseof ‘system of classification’.

mischief: This meant ‘harm, hurt, damage’—stronger anddarker than the word’s meaning today.

of course: On page 22 Bentham takes this to mean what wewould mean by ‘as a matter of course’. That was a standardmeaning of the phrase in his day.

party: Bentham regularly uses ‘the party’ to mean ‘theindividual or group of individuals’. In assessing some actionby a government, the ‘party’ whose interests are at stakecould be you, or a political party, or the entire community.

peculiar: This usually meant ‘pertaining exclusively to oneindividual’; but Bentham often uses it to mean ‘pertainingexclusively to one kind of individual’.

perfect: Often used here with the same sense that wegive it. But in much of chapter 1, starting on page 18,it probably has its older meaning of ‘complete’; similarly‘perfectly’/‘completely’.

science: In early modern times this word applied to anybodyof knowledge or theory that is (perhaps) axiomatised and(certainly) conceptually highly organised.

sentiment: For Bentham a sentiment could be a feeling oran opinion. In this version, where it clearly means ‘feeling’ itis replaced with that word. In other occurrences, it is allowedto stand, leaving it to you to pick.

sinister: Of the various inter-related senses that the OEDgives for this word, the one that seems to fit best withBentham’s usage is ‘suggestive of evil or malice’. The phrase‘sinister interest’ now a technical term in legal theory, wasfirst used by Bentham.

synopsis: Used here in its now-rare sense of ‘general viewor prospect’ (OED).

tendency: Likely consequences.

Preface

The age we live in is a busy one in which knowledge israpidly advancing towards completion. In the natural world,especially, everything teems with discovery and improvement.The a most distant and little-known regions of the earthtraversed and explored—the b all-vivifying and subtle elementof the air so recently analysed and made known to us—arestriking evidences, were all others lacking, of this pleasingtruth.1

Corresponding to discovery and improvement in thenatural world is reformation in the moral world, if thecommon view that in the moral world there is no longeranything to discover is true. But perhaps it is not true;perhaps among the best grounds for reformation are someobservations of matters of fact which—having previouslybeen noticed either incompletely or not at all—would whenproduced seem able to count as discoveries. An example isthis fundamental axiom:

It is the greatest happiness of the greatest numberthat is the measure of right and wrong;

because its consequences have until now been developedwith so little method and precision.

Be that as it may, if it is possible to make (and usefulto publish) discoveries in the natural world, surely it isnot much less possible to make (and useful to propose)reformation in the moral world. If it is important and usefulto us to be made acquainted with distant countries, surelyit is not much less important and useful to us to be madebetter and better acquainted with the chief means of livinghappily in our own country. If it is important and useful tous to know the principles of the element we breathe, surely it

is not much less important and useful to us to •understandthe principles and to •attempt to improve laws by whichalone we breathe that element in security. If we imagine anauthor—especially a famous author—to be and to declarehimself to be a determined and persevering enemy of such anattempt, what should we say of him? We should say that theinterests of reformation, and thus the welfare of mankind,were inseparably connected with the downfall of his works,or at least of a great part of the esteem and influence theseworks might have acquired.

It has been my misfortune (and not only mine) to see—orat least fancy I saw—such an enemy in the author of thecelebrated Commentaries on the laws of England, an authorwhose works have had incomparably wider circulation andmore esteem, applause, and consequently influence thanany previous writer on that subject, their influence beingsomething to which they were in many ways entitled.

That is why a while ago I conceived the plan of •pointingout some of what seemed to me to be the chief blemishesof that work, especially this grand and fundamental oneof hostility to reformation; or rather •of laying open andexposing the sloppiness and confusion that seemed to meto pervade the whole. For, indeed, such an ungenerousantipathy seemed to indicate that there must be a generalvein of obscure and crooked reasoning from which no clearand sterling knowledge could be derived; so intimate is theconnection between some of the gifts of the understandingand some of the affections [see Glossary] of the heart.

It is with this in mind that I took in hand that part of thefirst volume to which the author has called its Introduction.This part of the work contains

•whatever comes under the label ‘general principles’;1 [Footnotes by B&H explain that these are references to a the exploratory travels of Captain James Cook and b Joseph Priestley’s investigations into

‘different kinds of air’.]

A Fragment on Government Jeremy Bentham Preface

•the preliminary views that he thought fit to presentconcerning certain topics (real or imaginary) that hefound to be linked with his subject law by identityof name: two or three sorts of laws of nature, therevealed law, and a certain law of nations;

•remarks on several topics that relate to all laws orinstitutions in general, or at least to whole classes ofinstitutions without relating to any one more than toanother;

•his definition, such as it is, of the whole branch of lawthat he had taken for his subject.

Some people would consider that ‘branch’ to be a main stock,and would call it simply ‘law’. He calls it ‘municipal law’, todistinguish it from the other ‘branches’. He gives an account,such as it is, of the nature and origin of •natural society,the mother of municipal law, and of •political society, itsdaughter (begotten in the bed of metaphor)—this division,such as it is, of an individual law into what he fancies to beits parts; also an account, such as it is, of the method to beadopted for interpreting any law that may occur.

He gives an account•of the division of the Law of England into its twobranches, the so-called ‘statute’ or written law, andthe common or unwritten law (these are distinguish-able from one another not in their content but only inrespect of their source);

•of a what are called ‘general customs’, or institutionsin force throughout the whole empire or at least thewhole nation;

•of b what are called ‘particular customs’, institutionsof local extent established in particular districts; and

•of c adopted institutions of a general extent that belongto what are called the ‘civil’ and the ‘canon’ laws;

all three a b c being taken as so many branches of what is

called the ‘common law’. In short, he offers a general accountof d Equity, that capricious and incomprehensible mistress ofour fortunes, whose features neither our author nor perhapsanyone else can delineate properly; of Equity, who havingstarted as a rib of e Law but has since in some dark age beenplucked from her side when she was sleeping, by the handsnot so much of God as of enterprising judges, and now lordsit over e her parent sister.

All this, together with an account of the different dis-tricts of the empire over which different portions of theLaw prevail, or over which the Law has different degreesof force, composes the part of our author’s work that hecalls the ‘Introduction’. The whole thing is prefaced by aneloquent ‘Discourse on the study of the Law’, which I shan’ttrouble with because it is of the rhetorical rather than of theinstructive kind.

Rather than vainly trying to travel over the whole of sovast a work, I planned to take a portion of it that mightprovide a fair and adequate sample of the character and toneof the whole. And I thought that the part marked here ·in thisPreface· would abundantly suffice for this purpose. Thoughnarrow in extent, it was the most conspicuous, the mostcharacteristic part of our author’s work, and that which wasmost his own. The rest was little more than compilation [lists

and assemblages of details]. In pursuing my examination thusfar, I thought I would be pursuing it as far as was necessaryfor my purpose. . . .

That project took me as far as the middle of the definitionof municipal law, but there I was surprised to find thedigression that makes the subject of the present Essay. Thiscreated a puzzle for me:

•it would seem strange to by-pass in silence such alarge and significant part of the work I was examining;on the other hand,

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•I saw no possibility of examining this anomalousdissertation without cutting in pieces the thread ofmy discourse.

Under this doubt, I decided to pass it by, at any rate forthe present, encouraged in this by the fact that I could notsee any connection between the digression and anythingthat came before or after. That’s what I did: continuingmy examination of the definition from which it digressed, Itravelled on to the end of the ‘Introduction’.

Then I had to come to some definite decision concerningthis ill-fitting digression. I was reluctant to leave the enter-prise I had begun, with this bit of it unfinished; so I sat downto give what I intended to be a very slight and general surveyof it. But the further I went in examining the digression

•the more confused and unsatisfactory it seemed to meto be,

•the harder I found it to know what to make of it, and•the more words I needed to say so.

That was how the present Essay grew to the size in whichthe reader sees it. When it was nearly completed, it occurredto me that just as the digression I was examining wasunconnected with the text from which it starts, so also mycritique of that digression need not be connected with mycritique of the text. The former was much too large to beengrafted into the latter; and since if it accompanied it at allit could only be in the form of an appendix, there seemedno reason why the same publication should include themboth. So I decided to deal with the digression as thoroughlyas I could and as I thought necessary, and to publish thistreatment separately, with the possibility of publishing therest at some later time. . . .

This enterprise—·this attack on the ‘digression’·—maystrike most people as extraordinary and many as unaccept-able, so in self-defence I shall try to state with some degree

of precision the grounds of the war I think myself boundto wage against this work, waging it in the interests of truescience [see Glossary], and of liberal improvement. For thispurpose I shall mark out the points of view in which it seemsprincipally reprehensible, not forgetting those in which itseems still entitled to our approval and applause.

Everyone who finds anything to say on the subject of lawmay be said to adopt either of two characters: that of theexpositor and that of the censor. It is the expositor’s role toexplain to us what he thinks the Law is; the censor’s role is toobserve to us what he thinks it ought to be. So the former isprincipally occupied in stating or looking for facts; the latterin discussing reasons. The expositor’s work gives him noconcern with any faculties of the mind except apprehension,memory, and judgment; the censor’s requires him to takesome account of the affections [see Glossary], because of thefeelings of pleasure or displeasure that he finds occasionto annex to the objects under his review. What is law iswidely different in different countries, whereas what oughtto be law is in all countries the same to a great degree. Sothe expositor is always a citizen of some particular country,while the censor is or ought to be a citizen of the world.It is for the expositor to show what the legislator and hisunderworkman [Bentham’s word] the judge have done already;it is for the censor to suggest what the legislator ought to doin future. In short, it is for the censor to teach the sciencewhich others convert into an art that the legislator practises.

Let us now return to our author. Of these two perfectlydistinguishable functions, only the expositor’s fell necessarilywithin his province. His professed aim was to explain to uswhat the laws of England were. . . . The work of the censorwas to him a mere decorative extra—a work which, if aptlyexecuted, would be a great ornament to the principal one,and highly instructive and entertaining to the reader, but

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which he could have omitted without being accused of anydeficiency. If he—or any of those who had gone before himon the same line—had added this extra to the principal,this would lay him under additional obligations and imposeon him new duties. But however it might differ from theprincipal work, the ‘extra’ should agree with it in this: itshould be carried out with impartiality or not at all.

If a hasty and undiscriminating •condemner of what isestablished may expose himself to contempt, a bigoted orcorrupt •defender of the works of power becomes (in a way)guilty of the abuses he supports; the more so if he triesby oblique glances and sophistical glosses to guard fromreproach, or recommend to favour, things that he doesn’tknow how—and dares not attempt—to justify. To a manwho contents himself with simply describing an institutionas he thinks it is, no-one would think of aiming at himany reproach or applause the institution may be thought todeserve. But if he is not content with this humbler functionand undertakes to give reasons on behalf of it, whether thereasons are made by him or found by him, the situation isvery different. Every false and sophistical reason that hehelps to circulate can be charged against him. He ought alsoto be held guilty of reasons that he delivers as from otherwriters without censure [see Glossary]. By officiously adoptingthem, he makes them his own—almost as much when hedelivers them under the names of the respective authors asif he delivered under his own name. For the very idea of areason indicates approval; so that to deliver a remark underthat character, without censure, is to adopt it. So a manwon’t present an argument that he doesn’t really want to seeapproved without giving some indication of his disapproval ofit. He will find some way to wash his hands of it, to let mensee that he is merely reporting the judgment of someone elseand not presenting one of his own. He will then lay the blame

on that other person; or at least he will take care to repelit from himself. If he omits to do this, the most favourablecause that can be assigned to the omission is indifference,indifference to the public welfare, which is itself a crime.

It is astonishing how quick some people have been tolook on it as a kind of presumption—and ingratitude, rebel-lion, cruelty, and I know not what else—to •allege that anold-established law could in any respect be a fit object ofcondemnation, or even to •allow anyone to imagine such athing. I shan’t go into the reasons for this attitude, whetherit comes from

•a kind of personification that treats the Law as a livingcreature, or

•a routine, unthinking veneration for antiquity, or•some other delusion of the fancy.

For my part, I can’t think of any good reason why the meritof justifying a good law should be thought greater than themerit of censuring a bad one. Under a government of laws,what is the motto of a good citizen? To obey punctiliously; tocensure freely.

This much is certain: a system that is never to be cen-sured will never be improved; if nothing is ever to be foundfault with, nothing will ever be mended; and a resolution tojustify everything and disapprove of nothing is a resolutionwhich (in the future) must stand as an effective bar to allthe additional happiness we can ever hope for, and (in thepast) would have robbed us of the share of happiness thatwe enjoy already.

And the disposition to find ‘everything as it should be’is at variance with itself. The commonplace arguments insupport of it don’t justify what is established any more thanthey condemn it, because whatever is now established wasonce innovation!

·Let us not worry about the possibility that censure may

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come too quickly and not be justified·. Precipitate censure ofa political institution recoils on the head of the person whocasts it. If the institution is well grounded, it can’t sufferfrom such an attack, ·and the attack may even do somegood·. If it makes no impression on anyone, it’s as though ithadn’t happened, and we can ignore it. If it does make animpression, it naturally draws people to defend against it.For if •the institution really is beneficial to the communityin general, there are bound to be individuals who have aninterest in its preservation. Their work will bring to light thereasons on which •it is based; and from seeing those reasons,those who previously accepted it on trust now embrace iton conviction. Thus, even censure that is ill-founded hasno effect on an institution except to subject it to the testthat cries down the value of those on which mere prejudicehas stamped a currency, and confirms the credit of those ofsterling utility. [Note Bentham’s coinage metaphor: stamp, currency,

credit, sterling. He resorts to this often, e.g. ‘coining facts’ and ‘spending

argument’ on page 25.]

When censure is passed on legal institutions, it usuallydoes not arise from passion and ill-humour. When menspeak from passion and ill-humour, they are in ill-humourwith men, not laws; it is men, not laws, that are the butt ofarrogance. Spleen and turbulence may indeed prompt mento quarrel with living individuals; but when they complainabout the dead letter of the Law—the work of now-deadlawgivers against whom they can’t have had any personalantipathy—it is always because they see, or at least believe,that they have a real grievance. The Law is no man’s enemy;the Law is no man’s rival. Ask the clamorous and unrulymultitude: it is never the Law itself that is in the wrong;it is always some wicked interpreter of the Law who hascorrupted and abused it.

So there is no basis for the terrors, or pretended terrors, of

those who shudder at the idea of a free censure of establishedinstitutions. So little does the peace of society require men•to be taught to accept anything as a reason •to give thesame abject and indiscriminating homage to the laws in thiscountry as are given to despots elsewhere. The fruits ofsuch tuition are visible enough in the character of that raceof men who have always occupied too large a space in thecircle of the ·legal· profession—a passive and enervated race,ready to swallow anything, and to acquiesce in anything;with intellects that can’t distinguish right from wrong, andwith affections [see Glossary] that can’t do so either; insensible,short-sighted, obstinate, lethargic (yet liable to be driven intoconvulsions by false terrors); deaf to the voice of reason andpublic utility; obsequious only to the whisper of interest andto the wink of power.

This kind of mischief [see Glossary] is perhaps includedin the former, ·i.e. in the general category of harm to thecountry·. For why is it an evil to a country that the mindsof those who have the Law under their management shouldbe thus enfeebled? It is because it makes them unable toundertake any enterprise of improvement.

Not that a race of lawyers and politicians of this enervatedbreed is much less

•dangerous to the continuance of such felicity as thestate has at any given period than it is

•fatal to its chance of attaining more.If the designs of a minister are harmful to his country, whowill best serve him as an instrument or a dupe? Surely, thesort of man who is always on his knees before the footstoolof authority, and who thinks that when those above him orbefore him have pronounced, it is a crime to have an opinionof his own.

Those who duly consider on what slight and trivial cir-cumstances, even in the happiest times, the adoption or

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rejection of a law so often turns, circumstances that havenothing to do with that law’s utility;•those who consider the desolate and abject state of thehuman intellect during the periods when so many of thepresent institutions had their birth;•those who consider most men’s reluctance to tilt againstthe Colossus of authority except when they are spurred bypersonal interests or resentments;if they give these considerations their due weight, will per-haps not be quite as zealous as our author has been toterrify men from setting up what is now ‘private judgment’against what once was ‘public’, or to thunder down the harshepithet of ‘arrogance’ on those who, with whatever success,are occupied in bringing rough bits of legislation to the testof polished reason. They will rather do what they can tocherish a disposition that is so useful and so rare,1 andwhich is so little nourished by the propensities that governthe multitude of men. They will. . . .acknowledge that if thereare some institutions which it is ‘arrogance’ to attack, theremay be others which it is effrontery to defend.

•The discernment that enables a man to perceive—andthe courage that enables him to avow—the defects of a sys-tem of institutions is of a piece with •the detailed sharpnessof conception that enables him to give a clear account ofit. No wonder then, in a treatise partly of the expositorysort and partly of the censorial, that when the latter partis filled with imbecility [here meaning ‘is thoroughly incompetent’],symptoms of the same weakness also appear in the former.

But the former part of our author’s work is somethingthat I would hardly have wanted to get involved in for its ownsake. The business of simple exposition is a harvest that

seemed likely enough to have plenty of labourers; so I hadlittle ambition to thrust my sickle into it.

[Bentham writes at some length about the tone he wouldhave adopted if he had been writing solely about the exposi-tory part of the work of ‘our author’. He concludes:] To layopen and if possible repair the imperfections of the expositorypart might indeed do service; but I thought it would do moreservice to weaken the authority of the censorial part.

Under the sanction of a great name, every string ofwords however unmeaning, every opinion however erroneous,will have a certain currency. Reputation adds weight tosentiments [see Glossary] that had no part in creating thereputation, and that might have been regarded as negligibleif they had stood alone. Popular fame does not concern itselfwith fine distinctions. Merit in one department of scholarshipprovides a natural (and in a way unchangeable) presumptionof merit in another, especially if the two departments appearto be closely related.

A man who is for whatever reason admired as an adviserhas an amazing influence over young minds. Those whohave (or think they have) derived knowledge from what heknows (or appears to know) will naturally want to judge ashe judges, reason as he reasons, approve as he approves,condemn as he condemns. For that reason, when a work isunsound throughout, it may be useful to attack the whole ofit without distinction, even if the parts of it that are noxiousas well as unsound are only scattered here and there.

So it may be useful to show that the work before us, inspite of the merits that recommend it so powerfully to theimagination and to the ear, is not given by those merits anyentitlement to have the influence which it might, if it weren’t

1 Its rarity may be seen in the multitude of expositors whom the jurisprudence of every nation furnished before it provided a single censor. WhenBeccaria came, he was received by the intelligent as an angel from heaven would be by the faithful. He may be styled the father of censorialjurisprudence. [His 1764 work on Crimes and Punishments condemned torture and the death penalty.]

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examined critically, continue to exercise over the judgment.The ‘Introduction’ is the part to which, for reasons I have

given, I always intended to confine myself. The present Essayis concerned with only a part of this ‘Introduction’. I decidedto begin with •this small part because of how easily I couldseparate •it from everything that precedes or follows it. I willdeal with this in more detail in another place.1

It is not that this part is one of those that seemed mostopen to attack. This part does not display especially strongtraces of that spirit in our author which seems so hostile toreformation and to the liberty that heralds reformation.

It is not here that he •tramples on the right of privatejudgment, that basis of everything that an Englishmanholds dear; •insults our understandings with trivial reasons;•stands forth as a professed champion of religious intoler-ance; or •openly opposes civil reformation. It is not here, forexample, that he

a tries to persuade us that a trader who occupies abooth at a fair is a fool for his pains, and therefore notfit for the Law’s protection;

b gives the presence of one man at the making of a lawas a reason why ten thousand others that are to obeyit need know nothing about it;

c after telling us explicitly that a burglary requires an‘actual breaking’, goes on almost immediately to tellus equally explicitly where burglary can occur withoutactual breaking, because ‘the Law will not suffer itselfto be trifled with’;

d after describing the laws by which peaceableChristians are made punishable for worshippingGod according to their consciences, pronouncesin an equally peremptory and confident way that

‘everything’—yes, everything—‘is as it should be.’e commands us to believe—on pain of forfeiting allclaims to ‘sense or probity’—that our system of ju-risprudence is over-all and in every part the veryquintessence of perfection;

f assures us as a matter of fact that there never hasbeen an alteration made in a law that men have notafterwards found reason to regret;. . . .

g turns with scorn on the beneficent legislators whohave wanted to pluck the mask of mystery from theface of jurisprudence.

And although here as everywhere he is eager to hold thecup of flattery to high rank, in this place he stops short ofidolatry.

·BENTHAM’S FOOTNOTES TO ITEMS a THROUGH g·

a ‘Burglary’, says our author, ‘cannot be committed in a tentor a booth erected in a market fair, though the owner maylodge therein: for the Law regards thus highly nothing butpermanent edifices—a house, or church; the wall, or gate ofa town—and it is the folly of the owner to lodge in so fragilea tenement.’ To save himself from this charge of folly, it isnot altogether clear which of two things the trader ought todo: quit his business and not go to the fair at all, or leavehis goods without anybody to take care of them.b Speaking of an act of Parliament, he says: ‘There needsno formal promulgation to give it the force of a Law, as wasnecessary by the Civil Law with regard to the Emperor’sEdicts: because every man in England is, in judgment ofLaw, party to the making of an Act of Parliament, beingpresent at it by his representatives.’ This may for all I knowbe good judgment of Law, because anything can be called

1 [He means that he will deal with everything in the Commentaries apart from the tiny bit of it that is his present topic. He did so in his enormous AComment on the Commentaries, a work that he left uncompleted and was not published until long after his death.]

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judgment of Law that comes from a prominent lawyer; but itdoes not seem to be much like anything that can be calledjudgment of common sense. . . .c His words are: ‘There must be an actual breaking,. . . .asubstantial and forcible irruption.’ In the next sentencebut two he continues: ‘But to come down a chimney isheld a burglarious entry; for that is as much closed as thenature of things will permit. So also to knock at a door, andupon opening it to rush in with a felonious intent; or underpretence of taking lodgings, to fall upon the landlord and robhim; or to procure a constable to gain admittance, in orderto search for traitors, and then to bind the constable and robthe house; all these entries have been adjudged burglarious,though there was no actual breaking: for the Law will notsuffer itself to be trifled with by such evasions.’ Can it bemore egregiously trifled with than by such reasons?. . . .d ‘In what I have now said’, says he, ‘I would not be under-stood to derogate from the rights of the national Church, or tofavour a loose latitude of propagating any crude undigestedsentiments in religious matters. Of propagating, I say, formerely having them, without an endeavour to diffuse them,seems hardly cognizable by any human authority. I onlymean to illustrate the excellence of our present establishmentby looking back to former times. Everything is now asis should be: unless, perhaps, that heresy ought to bemore strictly defined, and no prosecution permitted, even inthe Ecclesiastical Courts, till the tenets in question are byproper authority previously declared to be heretical. Underthese restrictions it seems necessary for the support of thenational religion’ (the national religion being such, we areto understand, as could not support itself if anyone wereallowed to make objections to it) ‘that the officers of theChurch should have power to censure heretics but not toexterminate or destroy them.’. . . .

e I am not quite sure how far back he meant this opinionto extend itself—whether he meant it to apply only to •theinstitutions that happened to be in force at the time whenhe was writing or also to •such opposite institutions alsoas, within any given distance from that time, had been inforce or were about to be. His words are as follows: ‘Allthese rights and liberties it is our birthright to enjoy entire;unless where the Laws of our country have laid them undernecessary restraints. Restraints in themselves so gentle andmoderate, as will appear upon further enquiry, that no manof sense or probity would wish to see them slackened. For allof us have it in our choice to do everything that a good manwould desire to do; and are restrained from nothing, butwhat would be pernicious either to ourselves or our fellowcitizens.’ If the reader wants to know what these rights andliberties are, I answer him (out of the same page) they arethose ‘in opposition to one or other of which every speciesof compulsive tyranny and oppression must act, havingno other object upon which it can possibly be employed.’The liberty, for example, of worshipping God without beingobliged to declare a belief in the XXXIX Articles is a libertythat no ‘good man’, ’no man of sense or probity’, ‘would wishfor’.

f If no reason can be found for an institution, we are tosuppose one: and it is upon the strength of this supposedone we are to cry it up as reasonable. . . . The words are’Not that the particular reason of every rule in the Lawcan, at this distance of time, be always precisely assigned;but it is sufficient that there be nothing in the rule flatlycontradictory to reason, and then the Law will presume it tobe well founded. And it has been an ancient observation inthe Laws of England’ (he might with as good ground haveadded ‘and in all other Laws’) ‘that whenever a standingrule of Law, of which the reason perhaps could not be

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remembered or discerned, has been wantonly broke in uponby statutes or new resolutions, the wisdom of the rule hasin the end appeared from the inconveniences that havefollowed the innovation.’ When a sentiment is expressedand—whether from caution or from confusion of ideas—aclause is put in by way of qualifying it that turns it intonothing,1 we can fairly take it that the probable effect ofthe whole passage is what it would be if no such clausewere there. . . . Taking the qualification into the account, thesentiment would make no impression on the mind at all; ifit makes any, the qualification is dropped and the mind isaffected in nearly the same way as it would if the sentimentstood unqualified. This, I think, we may conclude to be thecase with the passage quoted above. The word ‘wantonly’is, in pursuance of our author’s standing policy, inserted byway of salvo.2 With it the sentiment is as much as comes tonothing. Without it, it would be extravagant. Yet if it has anyeffect on the reader, it is probably in this extravagant form.The comic part of the contrivance is the mention of ‘statutes’and ‘resolutions’ (the latter meaning decisions of courts ofjustice) in the same breath, as if it made no difference whichof these broke in on a rule of Law. For a new resolutionto break in upon a standing rule is indeed something thatis big with mischief. But this mischief depends not on therule’s being a reasonable one but on its being a standing,an established one. A new resolution made in the teeth ofan old established rule is mischievous because it shakeswhatever confidence men may have in the stability of anyrules of Law, reasonable or not reasonable—that stabilityon which everything that is valuable to a man depends.However beneficial it may be to the party [see Glossary] in

whose favour it is made, its benefit to him can never outweighthe mischief it brings to the community at large. It is whatLord Bacon calls setting the whole house on fire in order toroast one man’s eggs. Here then the salvo is not needed; anew resolution that is contrary to a standing rule is on thatvery account wanton. Let such a resolution be made, and‘inconveniences’ in abundance will sure enough ensue; andwhat that will show is not •the wisdom of the rule but—a verydifferent thing—•the folly of breaking in upon it. It is almostsuperfluous to remark that none of this applies in general toa statute. Particular statutes may be conceived that wouldthwart the course of men’s expectation and thus producemischief in the same way that irregular resolutions do. Anew statute—unless it is simply a declaratory one—mustbreak in upon some standing rule of Law. To tell us thata ‘wanton’ statute has produced ‘inconveniences’, what isthat but to tell us that a thing that has been mischievoushas produced mischief? Of this type are the arguments ofall those senile politicians who, when out of humour witha particular innovation without being able to tell why, setthemselves to declaim against all innovation because it isinnovation. It is the nature of owls to hate the light: andit is the nature of those politicians who are wise by rote todetest everything that forces them either to find (what maybe impossible) reasons for a favourite persuasion or (what isnot endurable) to discard it.

g It is from the decisions of courts of justice that those rulesof Law are framed, on the knowledge of which depend thelife, the fortune, the liberty of every man in the nation. Therecords of these decisions are, according to our author, themost authentic histories. These Records were until 45 years

1 [The ‘clause’ in question is the word ‘wantonly’; in calling it a ‘clause’, Bentham may be jokingly treating it as a legal technicality.]2 [Bentham may mean this in either of two meanings given by the OED: •As a legal term for a special kind of saving clause. •‘A dishonest mental

reservation, an evasion’.]

9


ago in Law-Latin, a language which about one man in athousand used to fancy himself to understand (that is ahigh estimate). Our author is satisfied they should havebeen continued in this Law-Latin, because the pyramids ofEgypt have stood longer than the temples of Palmyra. Heobserves that the Latin language could not express itself onthe subject without borrowing many words from English,which is to help to convince us that of the two Latin isthe fittest to be employed! He says that this Latin wasnot more unintelligible than the jargon of the schoolmen,some examples of which he produces. And then he goeson: ‘This technical Latin continued in use from the timeof its first introduction till the subversion of our ancientconstitution under Cromwell; when, among many otherinnovations on the body of the Law, some for the betterand some for the worse, the language of our records wasaltered and turned into English. But at the Restoration ofKing Charles, this novelty was no longer countenanced; thepractisers finding it very difficult to express themselves soconcisely or significantly in any other language but the Latin.And thus it continued without any sensible inconveniencetill about the year 1730, when it was again thought properthat the Proceedings at Law should be done into English,and it was accordingly so ordered by statute. This was donein order that the common people might have knowledgeand understanding of what was alleged or done for andagainst them in the process and pleadings, the judgmentsand entries in a cause. Which purpose I know not how wellit has answered; but am apt to suspect that the people arenow, after many years experience, altogether as ignorant inmatters of law as before.’ In this scornful passage the wordsnovelty—done into English—apt to suspect—altogether asignorant—sufficiently show the affection [see Glossary] of themind that dictated it. It is thus that our author chuckles over

the supposed defeat of the legislature with a fond exultationwhich all his discretion could not persuade him to suppress.

The case is this. A large portion of the body of the Lawwas, by the bigotry or the artifice of lawyers, locked up in anillegible character and in a foreign tongue. The statute hementions obliged them to give up their hieroglyphics, andto restore the native language to its rights. This was doingmuch; but it was not doing everything. Fiction, tautology,technicality, circuity, irregularity, inconsistency remain. Butabove all the pestilential breath of fiction poisons the sense ofevery instrument it comes near. The consequence is that theLaw—and especially the part of it relating to Procedure—isstill far from being generally intelligible. The fault of thelegislature, then, is their not having done enough. Hisquarrel with them is for having done anything at all. . . .

·END OF FOOTNOTES TO ITEMS a–g STARTING ON PAGE 7·

The principal seat of the poison against which I aim to givean antidote is not this part, or any part, of the Introduction,which is the only passage I have any thoughts of examining.The subject handled in this part of the work does not admitof much to be said in the person of the censor. Employed,as we have seen, in settling matters of a preliminary naturein drawing outlines, this part does not provide occasion toenter into the details of any particular institution. I chosethe Introduction in preference to any other part of the workbecause it provides the fairest specimen of the whole, andnot because it provides the greatest scope for censure.

While with this freedom I expose our author’s faults, letme not be backward in acknowledging and paying homageto his various merits. I should do this in fairness notonly to him but to the public which for so many years hasbeen giving him so much applause, presumably not withoutreason.

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Correct, elegant, unembarrassed, ornamented, his styleis such as could hardly fail to recommend to the multitudeof readers a work that was even more wrong in its content.

In short, he is the first institutional writer who has taughtjurisprudence to speak the language of the scholar andthe gentleman; to put a polish on that rugged science [see

Glossary]; cleansed her from the dust and cobwebs of theoffice. And if he has not enriched her with the precisionthat is drawn only from the sterling treasury of the sciences,he has decked her out from the toilette of classic erudition;enlivened her with metaphors and allusions; and sent herout in some measure to instruct, and in still greater measureto entertain, the most miscellaneous and even the mostfastidious societies. The merit to which the work standsindebted for its reputation, as much perhaps as to any, isthe enchanting harmony of its numbers [= musicality], a kindof merit that is sufficient to give a certain degree of celebrityto a work devoid of every other. So much is man governedby the ear.

The function of the expositor may be conceived to divideitself into two branches: that of history and that of simpledemonstration. The business of history is to represent theLaw in the state it has been in, in the past; the business ofsimple demonstration, in the sense in which I will use theword, is to represent the Law in the state it is in right now.1

The category of demonstration contains the several busi-nesses of a arrangement, b narration and c conjecture. Itcan be called ‘narration’ where the Law is supposed to beexplicit, clear, and settled; and ‘conjecture’ or ‘interpretation’where it is obscure, silent, or unsteady. And ‘arrangement’is distributing the various real or supposed institutions into

different masses, determining the order in which they shallbe brought to view in a general survey, and finding a namefor each.

[Bentham says that he won’t discuss the b narration, thec interpretation, or the history presented by ‘our author’,because he has not worked on them. He then continues:]

Among the most difficult and important of the demon-strator’s tasks is the business of a arrangement. In this ourauthor has been thought—not without justice, I think—toexcel; at least in comparison to anything of that sort that hadpreviously appeared. It is to him that we owe an arrangementof the elements of jurisprudence that may be just about thebest that a technical nomenclature will admit of. A technicalnomenclature, so long as it is accepted as marking outand naming the principal headings, stands as an invincibleobstacle to every arrangement other than a technical one.[After an extremely obscure account of why a technicalarrangement, i.e. one governed by a technical nomenclature,must be ‘confused and unsatisfactory’, Bentham says that tograsp this properly we need to] understand what a properlyso-called natural arrangement would have to be.

I take it that any arrangement of the materials of anyscience can be called natural if it characterises them byproperties that men in general are, by the common constitu-tion of man’s nature, disposed to attend to; in other words,properties that naturally—i.e. readily—engage and firmly fixthe attention of anyone to whom they are pointed out. Thematerials or elements we are concerned with here are actionsthat can be the objects of what we call laws or institutions.

No property of actions is calculated so readily to engage(and so firmly to fix) the attention of an observer as their

1 The word ‘demonstration’ may seem to be out of place. In our language it is mainly used in the sense in which it is employed by logicians andmathematicians, which is not how I mean it; but on the Continent it is currently employed in many other sciences, as when the French have theirdémonstrateurs de botanique d’anatomie, de physique expérimentale, etc. I don’t know of any other word that will suit my purpose.

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relation—whether tendency towards [see Glossary] or diver-gence from—the common goal of them all, namely happiness.An act’s tendency to promote happiness is what we call itsutility; its divergence from this is what we call harmfulness[see Glossary]. So it is with actions that are among the objectsof the Law: the only way to make a man see clearly theproperty of them that every man is in search of—i.e. the onlyway to give him satisfaction—is to point out to him theirutility or harmfulness.

Utility, then, can give us a principle that may serveto preside over any arrangement we make of the variousinstitutions or combinations of institutions that compose thematter of this science ·of jurisprudence·. This principle, byputting its stamp on the names given to those combinations,can make satisfactory and clear any arrangement that ismade of them; and nothing else can do so. Governed inthis manner by a principle that is recognized by all men, thesame arrangement that would serve for the jurisprudence ofany one country would serve almost unchanged for that ofany other.

Another advantage: the harmfulness of a bad law wouldbe detected, or at least its utility would be made suspect,by the difficulty of finding a place for it in such a ·natural·arrangement; whereas a technical arrangement is a sink thatwill easily swallow any garbage that is thrown into it.

With such a natural arrangement, institutions wouldhave to be characterised by the nature of the various modesof conduct that they prohibit, thus making them offences.1

These offences would be collected into classes labelled by

their various kinds and degrees of harmfulness, i.e. by theproperties of them that are reasons for their being madeoffences. Whether any such mode of conduct does havesuch a property is a question to be answered by experience.

A bad law is one that prohibits a mode of conduct whichis not harmful. Thus to classify any mode of conductprohibited by a bad law as some kind of offence would involveasserting something that is contradicted by experience. Thuscultivated, the soil of jurisprudence would be found to repel,in a way, every evil institution. . . .

The synopsis [see Glossary] of such an arrangement wouldbe a compendium of both a expository and b censorialjurisprudence. It would serve to b justify or reprove thelegislator at least as effectively as to a instruct the subject.

In short, such a synopsis would be both a universal mapof a jurisprudence as it is and a slight but comprehensivesketch of b what it ought to be. That is because it wouldexpress the reasons for the various institutions it coversthrough the names the synopsis gives to the classes those in-stitutions belong to (and it would do this uniformly, whereasin our author’s synopsis they are expressed in scatteredinstances). And what reasons? Not technical reasons, suchas none but a lawyer gives, and none but a lawyer would putup with, but reasons that any man might understand.

Nothing in this need surprise us. The consequences ofany law, or of any act that is made the object of a law—theonly consequences that men are at all interested in—whatare they but pain and pleasure?2 So they can be namedby some such words as ‘pain’ and ‘pleasure’, and these

1 There can be offences of omission as well as of commission. I don’t want the complication of treating laws that command separately from laws thatprohibit. My phrase ‘mode of conduct’ covers omissions or forbearances as well as acts.

2 The reason for a law, in short, is simply the good produced by the mode of conduct it commands or (which comes to the same thing) the mischiefproduced by the mode of conduct it prohibits. If this mischief or this good is real, it is bound to show itself somewhere in the shape of pain orpleasure.

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are words that a man can understand without help from alawyer! In the synopsis of any arrangement that deservesto be called ‘natural’, the most dominant positions will beoccupied by terms such as these. They are terms which,if they can be said to belong to any science [see Glossary],belong to ethics rather than to jurisprudence, even universaljurisprudence.

What then is to be done with the purely technical namesof kinds of conduct—for example, with ‘offence againstprerogative’, ‘misprision’, ‘contempt’, ‘felony’, ‘praemunires’?What relation do they mark out between •the laws that con-cern the sorts of acts they stand for and •the common goal,·happiness·, I have been speaking of? None! So what wouldbecome of them in a natural arrangement? They would either•be banished at once to the region of ·metaphysical nonsensesuch as· ‘quiddities’ and ‘substantial forms’ or •be positionedin the corners and back-alleys of the synopsis—stationednot to give light but to receive it.

To return to our author. Embarrassed, as a man mustbe, by this blind and intractable ·technical· nomenclature,he will be found, I think, to have done as much as couldreasonably be expected from a writer in that situation, andmore and better than was ever done before by anyone.

In one part of his synopsis, especially, we find severalfragments of a sort of method [see Glossary] that comes closeto what may be termed a ‘natural’ one. We read there ofcorporal injuries, and of offences against

•peace,

•health,•personal security,1

•liberty,•property.

Light is let in, though irregularly, at various places. . . .

To return to our author’s Commentaries: even in a censo-rial view I don’t regard them as altogether without merit.Good reasons are occasionally given for the institutionscommented on, where they are capable of good reasons; andthat, as far as it goes, achieves one-half of the censor’s task.Nor is the dark side of the picture left absolutely untouched.Under the heading ‘Trial by jury’ there are some very justand interesting remarks on the still-remaining imperfectionsof that mode of trial; and under the heading ‘Assurances bymatter of record’, good things are said about the lying andextortionate jargon of ‘recoveries’. As well as saying what iswrong with these things, he also points out well-imaginedremedies for them. But these particular remarks are soout of harmony with the general disposition that appears sostrongly throughout the work—indeed so flatly contrary tothe general maxims that we have seen—that I can scarcelybring myself to attribute them to our author. One wouldthink some angel had been sowing wheat among our author’stares [a weed that resembles wheat]. . . .

With regard to this Essay itself, I have not much to say.Its principal and professed purpose is to expose our author’serrors and insufficiencies. The business of it is therefore tooverthrow rather than to set up; and latter task can seldom

1 This title exemplifies the way a natural arrangement can repel an incompetent institution. What I mean is the sort of filthiness that is called unnatural[He is talking about sodomy.]. Our author has ranked this in his class of Offences against personal security and in a subdivision of it entitled Corporalinjuries. In so doing, he has made the factual claim that the offence in question is productive of unhappiness in that way. But in cases where the actis committed by consent, this is manifestly not true. The law against the offence in question would be an entirely bad law if its basis were that falsefactual claim. The mischief the offence brings to the community in this case is of quite another nature, and would come under quite another class.When against consent, it does belong really to this class; but then it comes under another heading, namely ‘rape’.

13

A Fragment on Government Jeremy Bentham Introduction

be performed to any great advantage where the former is theprincipal one.

To guard against misrepresentation and make sure ofdoing our author no injustice, his own words are given allalong. Hardly any sentence is left unnoticed, so that what Ioffer is a kind of running commentary. When a writer buildson a plan of his own, the satisfactoriness of his productdepends to a large extent on the order and connection heestablishes between its various parts. But in a comment onthe work of someone else, no such connection—or at least nosuch order—can be established conveniently, if at all. Theorder of the comment is prescribed by the order, perhaps thedisorder, of the text.

This Essay, I repeat, is mainly engaged in overthrowing;in the little it does in the way of setting up, I have aimednot so much to think for the reader as to stir him to thinkfor himself. I flatter myself that I have done this on severalinteresting topics; and that is all that at present I propose.

Among the few views of my own that I have found occasionto advance, some promise to be far from popular, and maywell give rise to very warm objections. I do not wonderat these objections, and I have to approve of their motive.·Thinking of the writer as a servant of his readers·, the peopleare a set of masters whom a man cannot always fully pleaseand at the same time faithfully serve. Anyone who is resolvedto persevere without deviation in the line of truth and utilityneeds to learn to prefer the still whisper of enduring approvalto the short-lived bustle of tumultuous applause. . . .

Introduction

1. The subject of this examination is a passage contained inthe part of Sir W. Blackstone’s Commentaries on the Laws of

England that the author has called the ‘Introduction’. Thisintroduction of his is divided into four sections:

(1) his discourse ‘On the Study of the Law’;(2) under the title ‘Of the Nature of Laws in General’,

his speculations concerning the various items, realor imaginary, that are commonly brought under thecommon name ‘law’;

(3) under the title ‘Of the Laws of England’, generalobservations on the laws that he thought he shouldoffer as a preliminary to the details of any parts ofthem in particular;

(4) under the title ‘Of the Countries subject to the Lawsof England’, his statement of the different territorialextents of different branches of those laws.

2. It is in (2) that we find the passage I propose to examine.It is seven pages long.

3. After treating of ‘Law in general’, ‘Law of nature’, ‘Lawof revelation’, and ‘Law of nations’, ·so-called· branches ofthe imaginary whole ·that I mentioned on page 2·, our authorcomes at length to what he calls ‘municipal law’. This is thesort of law that men in ordinary conversation would callsimply ‘law’ without addition; the only sort perhaps (unlessit be that of Revelation) to which the name can, with strictpropriety, be applied: in a word, that sort which we seemade in each nation, to express the will of its governingbody. On this subject of ‘municipal law’ he sets out, as heshould, with a definition of the phrase itself; an importantand fundamental phrase that badly needed a definition, andnever as badly as since our author has defined it!

4. This definition is ushered in with no small displayof elaborate detail. First it is given entire; then it is thentaken to pieces, clause by clause; and every clause is sep-arately justified and explained. In the very midst of theseexplanations, in the very midst of the definition, he suddenly

14

A Fragment on Government Jeremy Bentham Introduction

pauses. It now occurs to him that this is a good time to givea dissertation, or rather a bundle of dissertations, on varioussubjects:

a On how governments were established,b On the different forms they take when they areestablished,

c On the peculiar [see Glossary] excellence of the formthat is established in this country,

d On the right (he thinks he needs to tell us) that thegovernment of every country has to make laws,

e On the duty to make laws, which he says govern-ments also have. . . .

5. The digression we are about to examine is not at allinvolved with the body of the work from which it starts. Nomutual references or allusions; no supports or illustrationscommunicated or received. It can be seen as one small workinserted into a large one, with hardly any connection betweenthe containing and the contained, except what the printingpress has given them. This disconnection will help us toexamine the digression separately, without breaking in onany thread of reasoning or any principle of order.

6. I have given a general statement of the topics touchedon in the digression we are about to examine. I trust it willbe found to be a faithful one. But it may not be thought toharmonise well with the following, which our author himselfhas given us:

‘This will naturally lead us into a short enquiry intothe nature of society and civil government; and thenatural inherent right that belongs to the sovereignty

of a state, wherever that sovereignty be lodged, ofmaking and enforcing laws.’

(The first word ‘This’ refers to an explanation he had beengiving of a part of the definition I have spoken of.)1

7. No very explicit mention here, we may observe, of a howgovernments have been established, or of b the differentforms they take when established—no explicit indicationthat these were among the topics to be discussed. None atall of e the duty of government to make laws; no mention of c

the British constitution, though ·elsewhere· he has writtenmuch more copiously about this than about any of the otherfour listed topics. The one that for the moment seems tohave swallowed up almost the whole of his attention is d theright of government to make laws—a delicate and invidious[see Glossary] topic, as we shall discover when it is explained.

8. Be that as it may, the contents of the dissertationbefore us, taken as I have stated them, will provide us withthe matter for five chapters, to which I shall give these titles:(1) ‘Formation of government’, (2) ‘Forms of government’, (3)‘British constitution’, (4) ‘Right of supreme power to makelaws’, (5) ‘Duty of the supreme power to make laws’.

1 To make sure of doing our author no injustice, and to show what it is that he thought would ‘naturally lead us into’ this ‘enquiry’, it may be properto give the paragraph containing the explanation above mentioned. It is as follows: ’But farther: municipal law is a rule of civil conduct, prescribedby the supreme power in a state.’ ‘For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being overanother. Wherefore it is requisite, to the very essence of a law, that it be made’ [he might have added or at least supported] ‘by the supreme power.Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.’

15

A Fragment on Government Jeremy Bentham 1: Formation of Government

Chapter 1: Formation of Government

1. The first objective our author seems to have set himselfin the dissertation we are about to examine is to give us anidea of how governments were formed. This occupies hisfirst paragraph and part of the second, for the typographicaldivision does not seem to square exactly with the intellectual.My examination of this passage will unavoidably depend ingreat measure on the words, so the reader should have itunder his eye. [Section 2 is quoted from Blackstone, verbatim.]

2. ‘The only true and natural foundations of societyare the wants and the fears of individuals. Not that wecan believe, with some theoretical writers, that there everwas a time when there was no such thing as society; andthat, from the impulse of reason, and through a sense oftheir wants and weaknesses, individuals met together in alarge plain, entered into an original contract, and chose thetallest man present to be their governor. This notion of anactually existing unconnected state of nature, is too wild tobe seriously admitted; and besides, it is plainly contradictoryto the revealed accounts of the primitive origin of mankind,and their preservation two thousand years afterwards; bothwhich were effected by the means of single families. Theseformed the first society, among themselves; which every dayextended its limits, and when it grew too large to subsist withconvenience in that pastoral state, wherein the Patriarchs ap-pear to have lived, it necessarily subdivided itself by variousmigrations into more. Afterwards, as agriculture increased,which employs and can maintain a much greater number ofhands, migrations became less frequent; and various tribeswhich had formerly separated, re-united again; sometimesby compulsion and conquest, sometimes by accident, andsometimes perhaps by compact. But though society hadnot its formal beginning from any convention of individuals,

actuated by their wants and their fears; yet it is the senseof their weakness and imperfection that keeps mankindtogether; that demonstrates the necessity of this union; andthat therefore is the solid and natural foundation, as wellas the cement of society: And this is what we mean by theoriginal contract of society; which, though perhaps in noinstance it has ever been formally expressed at the firstinstitution of a state, yet in nature and reason must alwaysbe understood and implied, in the very act of associatingtogether: namely, that the whole should protect all its parts,and that every part should pay obedience to the will of thewhole; or, in other words, that the community should guardthe rights of each individual member, and that (in return forthis protection) each individual should submit to the lawsof the community; without which submission of all it wasimpossible that protection could be certainly extended toany.

‘For when society is once formed, government results ofcourse, as necessary to preserve and to keep that societyin order. Unless some superior were constituted, whosecommands and decisions all the members are bound to obey,they would still remain as in a state of nature, without anyjudge on earth to define their several rights, and redresstheir several wrongs.’

3. Thus far our author. When leading terms are made tochop and change—sometimes meaning one thing, sometimesanother, perhaps in the upshot meaning nothing—and whenthis happens within a single paragraph, one may judge whatthe whole context will be like. This, we shall see, is thecase with the main words in the passage we have beenreading, for example the words ‘society’, ’state of nature’,and ‘original contract’, not to tire the reader with any more.In one place ‘society’ means the same as ‘a state of nature’;in another place it means the same as ‘government’. Here

16


we are required to believe there never has been a state ofnature; there we are given to understand there has been.Similarly with respect to an original contract: we are given tounderstand that such a thing never existed, that the notionof it is ridiculous; and at the same time that there is nospeaking or stirring without supposing there was one.

4. Firstly: ‘Society’ as meaning a state of nature. Ifby ‘a state of nature’ a man means anything, it is thestate men are supposed to be in before they are undergovernment, the state men leave when they enter into astate of government and that they would otherwise remainin. But by the word ‘society’ it is plain at one point that hemeans that state. According to him, first comes society andthen comes government. ‘For when society is once formed,government results of course, as necessary to preserve andkeep that society in order.’ And again, immediately afterthat, he offers as an explanation (and not a bad one) of astate of ‘government’, namely ’A state in which a superiorhas been constituted, whose commands and decisions allthe members are bound to obey’; and says that if men werenot in a state of that description, ‘they would still remainas in a state of nature’. So again by ‘society’ he means thesame as by a ‘state of nature’; he opposes it to government,and speaks of it as a state which, in this sense, has actuallyexisted.

5. Secondly: That is what he tells us at the beginningof the second of the two paragraphs; but throughout thefirst paragraph ‘society’ means the same as ‘government’. Inshifting from one paragraph to another, society has changedits nature! It is ‘the foundations of society’ that he firstbegins to speak of, and he immediately goes on to explainto us (after his manner of explaining) the foundations of

government. Soon after, he speaks of a ‘formal beginning’of ’society’, by which tells us that he means ‘the originalcontract of society’, and he says that when this contract isentered into ‘a state’ is thereby ‘instituted’, and men haveundertaken to ‘submit to laws’. While this first paragraphlasts, ‘society’ plainly has to mean the same as ‘government’.

6. Thirdly: All this while too, this same ‘state of nature’that men would ‘remain’ in if it were not for government is astate that men never were in. So he explicitly tells us on thenext page: ‘This notion of an actually existing unconnectedstate of nature’

—that is, as he explains himself afterwards, ‘a statein which men have no judge to define their rights andredress their wrongs’—

‘is too wild to be seriously admitted.’ So when he admits ithimself on his next page, we are presumably to understandthat ·he is not serious, and· that he is teasing us, the secondparagraph being a joke, which we wouldn’t otherwise havetaken it for.

7. Fourthly: We are to understand that the originalcontract never occurred, perhaps not in any state andtherefore certainly not in all: ‘perhaps, in no instance hasit ever been formally expressed at the first institution of astate’, our author says.

8. Fifthly: Despite all this, we apparently have to supposethat in every state ‘in nature and reason it must always beunderstood and implied’ says our author. Growing bolder inthe course of several pages concerning •our own government,he asserts roundly that such a contract was actually made atthe first formation of •it: ‘The legislature would be changedfrom that which was originally set up by the general consentand fundamental act of the society.’1

1 [This is from the passage that occupies section 3 on page 37.]

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9. Let us try to do something towards drawing themeaning of these terms out of the mist in which our authorhas involved them. The word ‘society’ seems to be used byhim—without warning—in two senses that are opposite. Inone, ‘society’ (or ‘state of society’) is made synonymous with‘state of nature’, and stands opposed to government (or astate of government). In this sense it may be called ‘naturalsociety’. In the other sense, ‘society’ is made synonymouswith ‘government’ (or ‘state of government’), and standsopposed to a state of nature. In this sense it may be called‘political society’. I don’t think it will take many words to givea tolerably distinct idea of the difference between these twostates.

10. The idea of a natural society is a negative one. Theidea of a political society is a positive one. So we shouldbegin with the latter.

When a number of persons (whom we may call ‘subjects’)are in the habit of paying obedience to a person, or anassemblage of persons, of a known and certain description(whom we may call ‘governor’ or ‘governors’), these persons,subjects and governors, are said to be in a state of politicalsociety.

11. When a number of persons are in the habit ofconversing with each other while not being in any suchhabit ·of obedience· as mentioned above, they are said to bein a state of natural society.

12. A little reflection shows that these two states are notas sharply distinct from one another as we might at firstexpect, given these names and these definitions. It is withthem as with light and darkness: however distinct the ideasthat those names initially suggest, the things themselveshave no determinate boundary to separate them.

The difference between these two states is the presenceor absence of a habit of obedience. This habit has been

spoken of in one case as perfectly [see Glossary] present andin the other as perfectly absent; but neither of these waysof speaking is strictly accurate. There are in fact few if anycases of this habit being perfectly absent; and certainly noneof its being perfectly present. Governments, accordingly,recede from or approach a state of nature in proportion tohow perfect the habit of obedience is in them; and theremay be cases where it is difficult to say whether the habit isperfect enough to constitute a government.

·BENTHAM’S FOOTNOTE TO SECTION 12·1. A habit is simply an assemblage of acts, and in the presentcontext I take ‘acts’ to include voluntary forbearances.

2. A habit of obedience, then, is an assemblage of acts ofobedience.

3. An act of obedience is any act done in pursuance of anexpression of will on the part of some superior.

4. An act of POLITICAL obedience (which is what I am talkingabout here) is any act done in pursuance of an expression ofwill on the part of a person governing.

5. An expression of will is either parole or tacit.

6. A parole expression of will is one that is conveyed bywords.

7. A tacit expression of will is one that is conveyed signsother than words; the most effective of which are acts ofpunishment annexed in the past to the non-performanceof acts of the same sort as the objects of the will that is inquestion.

8. A parole expression of the will of a superior is a command.

9. When a tacit expression of the will of a superior issupposed to have been uttered, it may be called a fictitiouscommand.

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10. If we were free to coin words in the manner of the Romanlawyers, we might call it a quasi-command.11. The STATUTE LAW is composed of commands; the COM-MON LAW of quasi-commands.12. An act that is the object of an actual or fictitiouscommand is—considered before it is performed—called aduty or a point of duty.13. With these definitions premised, we are now in a positionto give a tolerably precise idea of what is meant by the‘(im)perfection’ of a habit of obedience in a society.14. How perfect the habit of obedience is in a given societyat a given period depends on the ratio of the number of actsof obedience to the number of acts of disobedience.15. The habit of obedience in this country appears to havebeen more perfect in the time of the Saxons than in that ofthe Britons; unquestionably it is more so now than in thetime of the Saxons. It is to be hoped that well constructedand well digested laws will in due course make it even moreperfect; but it can never be absolutely perfect until manceases to be man.

A very ingenious and instructive view of the progress ofnations, from the least perfect states of political union tothat highly perfect state of it in which we live, may be foundin Lord Kaims’s Historical Law Tracts.16. For the convenience and precision of discourse it may beuseful here to settle the meanings of a few other expressionsrelative to the same subject. Persons who are in a state ofa political society with respect to each other may be said alsoto be in a state of b political union or connection.17. Those who are subjects can be said to be in a state ofc submission or of subjection with respect to the governors;the governors can be said to be in a state of d authority withrespect to the subjects.

18. When the subordination is considered as resultingoriginally from the will—or (it maybe more proper to say)the pleasure—of the governed party, we prefer the word‘submission’; when from that of the governing party, theword ‘subjection’ is preferred. So the latter term can scarcelybe used without apology, or with a note of disapproval;especially in this country, where the habit of consideringthe consent of the persons governed as being in some wayinvolved in the notion of all lawful (i.e. all commendable)government has gained so firm a ground. . . .

·END OF FOOTNOTE TO SECTION 12·

13. On these considerations, the supposition of a perfectstate of nature—a state of society perfectly natural—mayrightly be declared to be extravagant, which is what ourauthor seemed briefly to think it to be; but then that of agovernment that is in this sense perfect—

a state of a society perfectly political, a state of perfectb political union, of perfect c submission in the subject,of perfect d authority in the governor

—is no less extravagant. [Bentham has here a long footnotesaying that although the relation of infant to parent isvirtually one of perfect subjection, this does not make thefamily a case of ‘political society’ as this phrase is ordinarilyunderstood: it involves too few people for that, and alsothe obedience it involves is essentially impermanent, whichpolitical obedience is not. In section 16 below he will call it‘political society’, presumably meaning this as a technicalitythat can be understood well enough, although it does notconform to ordinary speech.]

14. To some ears, the phrases ‘state of nature’ and‘state of political society’ may appear to be absolute [here

= ‘non-relational’] in their signification; as if the condition of agroup of men in either of these states depended altogether

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on themselves. But this is not the case. No precise meaningcan be given to ‘state of nature’ or ‘state of political society’without reference to a party [see Glossary] different from theone that is spoken of as being in the state in question. Thedifference between the two states, I repeat, has to do withthe habit of obedience, and ·obedience is relational·: for oneparty to obey, there must be another party that is obeyed.But the party who is obeyed may be different at differenttimes. So a single party may be conceived to obey one person(or object of obedience) at the same time as not obeyinganother. Thus a single party may be said to be at one timein a state of nature and not in a state of nature, according towhat party is taken for the object of obedience. In commonspeech, when no particular object of obedience is specifiedall persons in general are intended; so that when a numberof persons are said simply to be in a state of nature, what ismeant is that they are so with reference to one another aswell as to all the world.

15. In the same manner we can understand how someonewho is governor with respect to one man or set of men may besubject with respect to another; and how among governors

•some may be in a perfect state of nature with respectto each other, like the kings of France and Spain,

•others in a state of perfect subjection, as the Lordsof Walachia and Moldavia are with respect to the·Ottoman· Grand Signior;

•yet others in a state of obvious but imperfect subjec-tion, as the German states are with respect to theEmperor;

•and still others of whom it is difficult to determinewhether they are in a state of imperfect subjection orin a perfect state of nature, as the King of Naples iswith respect to the Pope.

16. In the same way it may also be conceived—never mind

the details—how a single person who is born (as everyone is)into a state of perfect subjection to his parents, i.e. into astate of perfect political society with respect to his parents,may move from that into a perfect state of nature, andfrom that successively into any number of different states ofmore or less perfect political society by passing into differentsocieties.

17. In the same way it may be conceived how in anypolitical society one man may, with respect to the sameindividuals, be at different times and in different contexts,alternately governor and subject: a man x may on one dayhave a role in the business of issuing a general command forthe observance of the whole society, including another many in his role as judge, and then on the next day be punishedby a particular command of y for not obeying the generalcommand that x himself had issued. I need scarce remindthe reader how happily this alternate state of authority andsubmission is exemplified among ourselves.

18. Here might be a place •to state the different sharesdifferent persons may have in issuing one command, •toexplain the nature of corporate action, •to enumerate anddistinguish half a dozen or more different ways in whichthere can be subordination between the same parties, and•to distinguish and explain the different senses of the words‘consent’, ‘representation’, and others related to those inter-esting but perplexing words that are sources of so muchdebate and sources or pretexts of so much animosity. Butthe limits of my present design won’t allow such protractedand intricate discussions.

19. In the same way it may be conceived how one setof men, considered among themselves, may be in a state ofnature at one time and in a state of government at another.For the habit of obedience—in whatever degree of perfectionis needed for it to constitute a government—may obviously

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be conceived to suffer interruptions. It may occur and ceaseat different junctures [see Glossary].

20. Examples of this state of things seem not to be infre-quent. The sort of society that the American Indians havebeen observed to have may provide us with one. Accordingto the accounts we have of those people, in most of theirtribes the habit I am speaking of appears to be taken up onlyin time of war, and to cease in time of peace. The need forco-ordinated action against a common enemy brings a wholetribe under the orders of a common chief. On the return ofpeace, each warrior resumes his original independence.

21. One difficulty about all this has still not beensolved, namely to find a characteristic mark by which todistinguish a society where there is, from one where there isnot, a habit of obedience at the level of perfection needed toconstitute a state of government. I mean: a mark that has avisible determinate beginning, so that the instant of its firstappearance can be distinguished from the last at which ithad not yet appeared. Only with the help of such a markcan we determine at any given time whether a society is in astate of government or in a state of nature. The only suchmark I can find is the establishment of names of office—theappearance of a certain man or set of men with a certainname marking them out as objects of obedience, such as‘King’, ‘Sachem’, ‘Cacique’, ‘Senator’, ‘Burgomaster’, and thelike. I think this may serve tolerably well to distinguish a setof men in a state of political union among themselves fromthe same set of men not yet in such a state.

22. But suppose that a large political society has beenformed, and that a small part of it breaks off and ceasesto be in a state of political union with respect to the larger,thereby placing itself in a state of nature with respect to the

larger body. How shall we ascertain the precise junctureat which this change took place? What is to serve as thecharacteristic mark in this case? The appointment of newgovernors with new names? ·That won’t do, because· thesituation may be this:

No such appointment takes place. The subordinategovernors from whom alone the people at large wereaccustomed to receiving their commands under theold government are the same men from whom they re-ceive them under the new one. The habit of obediencethat these subordinate governors had with respectto the single person (let’s say) who was the supremegovernor of the whole is broken off insensibly and bydegrees. The old titles that these subordinate gover-nors had when they were subordinate are continuednow that they are supreme.

In this case it seems rather difficult to answer ·my questionabout the characteristic mark·.

23. For an example of this, let us take the Dutchprovinces with respect to Spain. These provinces wereonce branches of the Spanish monarchy. For a long timenow they have been universally spoken of as independentstates—independent of Spain as much as of every other·government·. They are now in a state of nature with respectto Spain. They were once in a state of political union withrespect to Spain, a state of subjection to a single governor,who was King of Spain. At what precise time did theseprovinces cease to be subject to the King of Spain? This, Isuspect, will be rather difficult to agree on.1

24. The difficulty is even greater when the defectionbegins not by •entire provinces (as in the instance of theDutch) but by •a handful of fugitives, a group that grows

1 I have come to be unsure whether this example is historically exact. If not, that of the defection of the Nabobs of Hindostan may answer the purpose.

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as other fugitives join it and gradually becomes a body ofmen too strong to be reduced. At what precise juncturedid ancient Rome or modern Venice became an independentstate?

25. In general, then, at what precise point do personssubject to a government come to be, through disobedience tothat government, in a state of nature? When is a revoltto be deemed to have taken place? and when is thatrevolt to be deemed successful enough to have settled intoindependence?

26. Just as the obedience of individuals constitutes astate of submission, so their disobedience must constitute astate of revolt. Will any act of disobedience do as much? Theanswer Yes is not maintainable, because it implies that thereis no such thing as government anywhere. Here a couple ofdistinctions obviously present themselves.

•Disobedience can be conscious or unconscious, with respectto the law as to the fact.1 I don’t think anyone will count asa ‘revolt’ any disobedience that is unconscious with respectto fact or law.

•Disobedience that is conscious with respect to both factand law can be secret or open, i.e. fraudulent or forcible.2

Disobedience that is only fraudulent will also be readilyacknowledged not to amount to a revolt.

27. The remaining difficulty is purely concerned withdisobedience that is both conscious (with respect to law andto fact) and forcible. Whether such disobedience shouldcount as a ‘revolt’ seems not to be settled purely by

•the number of those who are disobedient, or•their acts, or•their intentions.

All three may be fit to be taken into consideration. Buthaving brought the difficulty to this point, I must now becontent to leave it. To go any further in trying to solveit would be to enter into a discussion of particular localjurisprudence. It would be entering on the definition of‘treason’, as distinguished from murder, robbery, riot, andother such crimes as are spoken of as being of a more privatenature than treason. . . .

28. It would be easy to extend these remarks to a muchgreater length, and indeed that would be necessary if theywere to have a proper fulness, method [see Glossary], andprecision. But that would exceed the limits of my presentdesign. ·Incomplete· as they are, I leave them as hints toanyone who wants to give the subject a more exact andregular examination.

29. I have said enough, however, to enable us to judgewhat truth there is in our author’s observation that

When society is once formed, government results ofcourse, as necessary to preserve and to keep thatsociety in order.‘

Which we can understand to mean:‘When natural society is once formed, political society(whatever kind or level of obedience is necessaryto constitute political society) results of course [see

Glossary], as necessary to preserve and to keep that1 Unconscious with respect to the fact: the party does not know that he has done the legally forbidden act or that he has done it in circumstances

in which it is forbidden. Unconscious with respect to the law: he knows that he has done the act, but does not know that it is legally forbiddenin the circumstances in which he has done it. Given the neglect of the business of spreading knowledge of the law, cases of disobedience that isunconscious with respect to the law are bound to be abundant.

2 Examples: theft is fraudulent disobedience, robbery is forcible. In theft there’s an attempt to keep secret the act of disobedience; in robbery the actof disobedience is manifest and avowed.

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society in order.’I take the words ‘of course’ to mean ‘constantly and immedi-ately’ or at least ‘constantly’. According to this, politicalsociety (in any sense of that phrase) ought long ago tohave been established all the world over. Whether thisis so you can judge from the instances of the Hottentots,the Patagonians, and so many other barbarous tribes thattravellers and navigators tell us about.

30. But I may have misunderstood his meaning. I havebeen supposing that he meant to assert a matter of fact, andto have written (or at least begun) this sentence in the role ofan historical observer; but perhaps he meant only to speakin the role of a censor, expressing his approval of a supposedcase. In that case he would be trying to persuade us not•that ‘government’ does actually ‘result’ from natural ‘society’but •that it would be better if it did, as being necessaryto ‘preserve and keep’ men ‘in that state of order’ that theybenefit from being in. Which of those roles he meant to adoptis a problem I must leave to be determined.

Perhaps the distinction never even occurred to him. Shift-ing insensibly and without warning from one of those rolesto the other is a failing that seems to be deeply rooted in ourauthor; and I shall probably have more than one occasion tocall attention to it.

31. Considering the whole paragraph (with its appendage)together, we see that author is struggling to overthrow some-thing and to establish something. But how he wants tooverthrow, or what he wants to establish, are questions Imust confess myself unable to answer. The preservationof mankind’, he observes, ‘was effected by single families.’He assumes this on the authority of the Holy Scriptures,and infers from it that the notion of an original contract (a

notion which he later adopts) is ridiculous. I have to admitthat I do not see the force of this inference. Mankind waspreserved by single families. Be it so. What is there inthis to hinder ‘individuals’ of those families (or of familiesdescended from them) from •meeting together ‘afterwards, ina large plain’ (or anywhere else), •‘entering into an originalcontract’ (or any other contract), and •‘choosing the tallestman’ (or any other man) ‘present’ (or absent) to be theirgovernor? The ‘flat contradiction’ our author finds betweenthis supposed transaction and the ‘preservation of mankindby single families’ is what I must admit to being unable todiscover. As for the ‘actually existing unconnected state ofnature’ that he speaks of, ‘the notion of which’ he says ‘is toowild to be seriously admitted’, I cannot judge whether this isthe case with it [i.e. presumably, whether it too is inconsistent with

the preservation of mankind by single families] because he has givenus no notion of it at all.1

32. In one place, however, we seem to have somethingpositive. It concerns these ‘single families’ by which thepreservation of mankind was effected—families that ourauthor gives us to understand ‘formed the first society’. Thisis something to proceed on. A society of one kind or theother was formed—a natural society or a political society.Well now, suppose that in this society no contract had yetbeen entered into, no habit of obedience yet formed. Was thisa merely natural society or rather a political one? Accordingto my notion of the two kinds of society as above explained, Ihave no difficulty in answering this: it was a merely naturalsociety. But which was it according to our author’s notion?•If it was already a political one, what notion would he giveus of a natural one; and what change would have turnedan earlier natural society into this political one? •If it was

1 The expressions in quotation-marks in this paragraph are all taken verbatim from the passage of Blackstone’s occupying section 2 above, except forBentham’s ‘flat contradiction’, which echoes Blackstone’s ‘plainly contradictory’.

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not a political one, then what sort of a society are we tounderstand that would be political? By what mark are weto distinguish it from a natural one? To this, it is plain, ourauthor has not given any answer. Yet giving an answer toit was (if anything was) the professed purpose of the longparagraph before us [i.e. the one occupying most of section 2 above].

33. It is time to dismiss this passage of our author.Because it contains some of the most striking expressionsthat the vocabulary of the subject provides, arranging themin the most harmonious order, nothing can look fairer ona first glance; the show-case of political erudition seldomexhibits a prettier piece of tinsel-work. Step close to it, andthe delusion vanishes! It is then seen to consist partly ofself-evident observations, and partly of contradictions; partlyof what everyone knows already and partly of what no-onecan understand at all.

34. Throughout the whole of it, what distresses me is not•meeting with positions that I think false, but findingit difficult to prove them so, but

•not meeting with any positions, true, or false, thatI can find a meaning for (except for the occasionalself-evident one).

Finding nothing positive to agree to, I also can’t find anythingpositive to contradict. There is indeed less contradicting foranyone else to do because our author has (as we have seen)done so much of it! The whole passage is a riddle; and theOedipus who can solve it will have to be much cleverer thanI am. Fortunately, nothing in what follows requires that itbe solved. Nothing is concluded from it. For all I can find, ithas in itself no use, and none is made of it. There it is, andas well might it be anywhere else, or nowhere.

35. If it could be solved, then, there would be no usein solving it; but given that it is (as I think it to be) reallyunsolvable, it would be useful to let it be seen to be so.

Peace may by this means be restored to the breast of many adesponding student who, having started with hopes of a richharvest of instruction, condemns himself for being unable toreap what his author has not sown.

36. As for the original contract that is by turns embracedand ridiculed by our author: it may be worthwhile to spend afew pages trying to come to a precise notion about its realityand use. The stress that used to be laid on it—and perhapsstill is by some—makes it an object that deserves attention. Ihad hoped that this chimera had been effectively demolishedby Mr Hume, till I observed the notice taken of it by ourauthor. I think we hear less of it now than we used to; theindestructible prerogatives of mankind have no need to besupported on the sandy foundation of a fiction.

·START OF A TWO-TOPIC FOOTNOTE·

·FIRST ABOUT HUME· The reference is to the third volume of hisTreatise of Human Nature. Our author, one would think, hadnever so much as opened that celebrated book, of which thecriminality (in the eyes of some) and the merits (in the eyesof others) have since been almost effaced by the splendourof more recent productions of the same pen. Perhaps ourauthor high-mindedly scorned to derive instruction from anenemy, or cautiously feared to do so. Or perhaps—and thisis more probable—he did not know that the subject had beenso much as touched upon by that penetrating and acutemetaphysician whose works lie so far off the beaten trackof academic reading. But here, as it happens, there is noreason for such fears. I don’t think that the men who aremost alarmed at the dangers of a free enquiry—who are mostfirmly convinced that the surest way to truth is by hearingnothing but one side—will find anything that they deem tobe poison in this third volume ·of Hume’s·. I would not wishto send the reader to any other than this third volume which,

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if I remember correctly, stands clear of the objections thathave recently been urged so vehemently against the Treatiseof Human Nature in general by Dr Beattie in his Essay onthe Immutability of Truth. As for the first two volumes: I aminclined to think that Hume himself is willing to agree withthose who hold that they could be dispensed with withoutany great loss to the science of human nature. The samemight be said of a considerable part even of this third volume.But after all retrenchments, enough will remain to have laidmankind under indelible obligations. That the foundationsof all virtue are laid in utility is demonstrated there. . . .withthe strongest force of evidence. . . . No sooner had I read thepart of the work that touches on this subject than I felt asif scales had fallen from my eyes; I then for the first timelearned to call the cause of the people the cause of virtue.

·THEN ABOUT BENTHAM’S MORAL EDUCATION· Perhaps a shortsketch of the wanderings of a raw but well-intentioned mindin its researches after moral truth may be of some use here,for the history of one mind is the history of many. My infantaffections [see Glossary] were enlisted on the side of despotismby several causes, including •the writings of the honest butprejudiced Earl of Clarendon to whose integrity nothing waslacking and to whose wisdom little. . . ., and •the contagionof a monkish atmosphere. The spirit of the place I dwelt in[Oxford University], the authority of the state, the voice of thechurch in its solemn rituals—all these taught me to call KingCharles a martyr and his opponents rebels.•I saw innovation; and there was indeed innovation, but itwas a glorious innovation in their efforts to withstand him.•I saw falsehood; and there was indeed falsehood, in theirclaims that they were not innovating.•I saw selfishness and an obedience to the call of passionin the efforts of the oppressed to rescue themselves fromoppression.

•I saw the sacred writings giving strong support to monarchicgovernment, and none to any other.•I saw passive obedience deeply stamped with the seal of theChristian virtues of humility and self-denial.

Conversing with lawyers, I found them full of the virtuesof their ‘original contract’, as a supremely effective recipefor reconciling •the occasional need for resistance with •thegeneral duty of submission. They fed me this drug of theirsto calm my scruples; but my unpractised stomach revoltedagainst their opiate. I told them to open to me the page ofhistory in which the solemnisation of this important contractwas recorded. They shrank from this challenge; and whenthey were pressed with it they could only do what our authorhas done, namely confess the whole thing to be a fiction.It seemed to me that by bringing a fiction to support theircause they were admitting it to be a bad one. I said:

‘To prove fiction, indeed, there is need of fiction; butit is the characteristic of truth to need no proof buttruth. Have you then really any such privilege as thatof coining facts? You are spending argument to nopurpose. If in the course of trying to prove that P istrue you indulge yourselves in the licence of supposingQ to be true though it is not, you might as well justsuppose P to be true ·and spare yourselves the troubleof trying to prove it·.’

Thus I continued, unsatisfying and unsatisfied, till I learnedto see that utility was the test and measure of all virtue, ofloyalty as much as any; and that the obligation to ministerto general happiness was an obligation inclusive of everyother. Having thus acquired the instruction I stood in needof, I sat down to make my profit of it. I bade adieu to the‘original contract’: and I left it to those who think they needit to amuse themselves with this plaything.

·END OF TWO-TOPIC FOOTNOTE·

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37. There may have been a time when this and other fictionshad their use. I don’t deny that instruments of this typemay have done some political work, useful work, which inthe situation then obtaining could hardly have been donewithout them. But the season of fiction is now over. . . . Theuniversal spread of learning has raised mankind to a levelwith each other, compared to what they have been at anyformer time; no man now is so far elevated above his fellowsthat he should be allowed the dangerous licence of cheatingthem for their good.

38. As for the fiction of the original contract, in the roleof an argumentum ad hominem and managed as it was, itsucceeded admirably.

That all compacts ought to be kept, and that men arebound by compacts, are propositions that all men weredisposed to agree to, without knowing or enquiring why.They had been accustomed to seeing the keeping of promisespretty constantly enforced. They had been accustomed toseeing kings, as well as others, behave as though they werebound by them. Thus the propositions

•Men are bound by compacts, and•If one party to a compact does not do his part, theother party is released from his

were ones that no man had any call to prove because noman disputed them. In theory they were assumed as axioms,and in practice they were observed as rules.1 If it was at anytime thought proper to make a show of proving them, thiswas rather for form’s sake than for anything else; and it wasdone in the way of •memento or instruction to acquiescinghearers, rather than of •proof against opponents. On suchan occasion, the commonplace retinue of phrases was athand: ‘justice required it’, ‘right reason required it’, ‘the

law of nature commanded it’, and so forth; all of which aremerely so many ways of signalling that a man is convincedof the truth of a moral proposition, though he either thinkshe need not, or finds he cannot, tell why. Men were tooobviously and too generally interested in the observance ofthese rules to have doubts about the force of any argumentsthey saw used to support them. It is an old observationhow interest smooths the road to faith! [In those two sentences,

‘interest’ involves the notion of having something at stake.]39. So a compact was said to have been made between

the king and the people, in which •the people promised tothe king a general obedience, and •the king promised togovern the people in a way that would be conducive to theirhappiness. I don’t insist on the words: I aim only to givethe sense, as far as any definite sense can be given to animaginary engagement so loosely and variously worded bythose who have imagined it. Assuming, then,

•as a general rule, that promises ought to be kept, and•as a point of fact, that a promise to this effect inparticular had been made by the party in question,

men were more ready to think themselves qualified •to judgewhen such a promise had been broken than •to tackledirectly and openly the delicate question of when a kinghad acted so far in opposition to the happiness of his peoplethat it would be better no longer to obey him.

40. It doesn’t take much thought to find it obvious thatnothing was gained by this manoeuvre: no difficulty wasremoved by it. There was as much need as ever to confronta the question that men were trying to avoid by substitutingb another in its place. To determine whether b the promisethe king was supposed to have made had been broken, it wasstill necessary to determine whether a the king had acted so

1 A compact or contract (for the two words, in this context at least, are used in the same sense) may, I think, be defined thus: a pair of promises by twopersons, reciprocally given, each promise in consideration of the others.

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far in opposition to the happiness of his people that it wouldbe better no longer to obey him. For a that was the b purportof his supposed promise.

41. This may be said:

At least a part of this promise was to govern insubservience to Law; so this supposal of a promiselays down a rule for his conduct that is more precisethan that other loose and general rule to govern insubservience to the happiness of his people; so theletter of the Law forms the content of the rule.

Well, it is true that governing in opposition to Law is one wayof governing in opposition to the happiness of the people;because the natural effect of such a contempt of the Lawis to destroy—or at least to threaten with destruction—allthose rights and privileges that are based on it, rights andprivileges on the enjoyment of which that happiness depends.But conformity-to-Law can’t safely be taken for the entireforce of the promise here in question; and there are fourreasons why. (i) The most harmful—and under certainconstitutions the most practicable—method of governingin opposition to the happiness of the people is by settingthe Law itself in opposition to their happiness. (ii) It maywell happen that a king greatly impairs the happiness ofhis people without violating the letter of any single law. (iii)There may be rare special occasions when the happinessof the people can be better promoted by acting briefly inopposition to the Law than by acting in subservience to it.(iv) No single violation of the Law can properly be taken fora breach of the king’s part of the contract that releases the

people from the obligation to perform their part. For (to quitthe fiction, and resume the language of plain truth) it hardlyever happens that submitting to a single violation of the Lawcan produce more mischief [see Glossary] than the probablemischief of resisting it. . . . It is obvious, therefore, that tomake any sound decision on b the question that the inventorsof this fiction substituted for a the true one, the latter stillhad to be decided. All they gained by their contrivance wasthe convenience of deciding it obliquely, as it were, and bya side wind; that is, in a crude and hasty way without anydirect and steady examination.

42. After all, why ought men to keep their promises?The only intelligible reason is that it is for the advantageof society that they should keep them, and that if nec-essary they should be compelled to keep them. It is forthe advantage of the whole number •that the promises ofeach individual should be kept, and •that, rather thantheir not being kept, individuals who fail to keep themshould be punished. . . . The benefit gained (and mischiefavoided) by keeping promises outweighs the mischief of somuch punishment as is needed to oblige men to keep them.Whether that is a correct account of the balance of benefitand mischief (that is, of pleasure and pain) is a question offact, to be decided—as are all questions of fact—by testimony,observation, and experience.1

43. So this reason—the sole reason—why men shouldbe made to keep their promises, namely that it is for theadvantage of society that they should, is a reason that mightas well be given at once,

1 A very striking and satisfactory display of how important promise-keeping is to society’s happiness is given in a little fable by Montesquieu, entitledThe History of the Troglodytes. The Troglodytes are a people who pay no regard to promises, which naturally leads them from one scene of miseryinto another, and at last to being exterminated. The same philosopher, in his Spirit of Laws, copying and refining on the current jargon, invents alaw for this and other purposes. . . . How much more instructive on this topic is the fable of the Troglodytes than the pseudo-metaphysical sophistryof the Esprit des Loix !

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•why kings in governing should in general keep withinestablished laws, and (to speak universally) abstain fromall measures that tend to the unhappiness of their subjects;and

•why subjects should obey kings as long as they do behavein that way, and no longer; i.e. as long as the probablemischiefs of obedience are less than the probable mischiefsof resistance; in short

•why, taking the whole body together, it is their duty to obeyjust as long as it is their interests to do so, and no longer.

This being the case, what need is there to say that the kingPROMISED so to govern, and that the people PROMISED so toobey, when in fact they didn’t?

44. It is true that in this country, according to ancientforms, some sort of vague promise of good government ismade by kings at the ceremony of their coronation. Letus (·for purposes of argument·) concede that the accla-mations given by chance persons out of the surroundingmultitude—·the congregation present at the coronation·,itself a small drop collected by chance out of the oceanof the state—constitute a promise of obedience by the wholemultitude; and let us concede that these two promises havecreated a perfect compact, though neither of them is declaredto be made because of the other.

45. Make the most of this concession! There is onethought-experiment by which I think every reflecting mancan satisfy himself beyond a doubt that his judgment onall these matters has been solely governed, secretly butunavoidably, by the consideration of utility. The experimentis easy and decisive. It is but to suppose a reversal of a b

the import of the particular promises thus feigned, and ofc the effect in point of utility of the observance of promisesin general. Suppose a the King to promise that he would

govern his subjects not according to Law, not with a view topromoting their happiness; would this be binding on him?Suppose b the people to promise they would obey him atall events, let him govern as he will; let him govern to theirdestruction. Would this be binding on them? Suppose c theconstant and universal effect of the keeping of promises wereto produce mischief [see Glossary]. Would it then be men’sduty to keep them? Would it then be right to make laws andapply punishment to oblige men to keep them?

46. This may be replied:‘No, it wouldn’t; but that is because there are somepromises that everyone allows are void, and the onesyou have been supposing ·in your reversal thought-experiment· are of that kind. It’s true that a promisethat is in itself void cannot create any obligation. Butallow the promise to be valid, and it is the promiseitself that creates the obligation, and nothing else.’

It is easy to see the fallacy of this argument. For what isit then that the promise depends on for its validity? Whatis the ingredient that makes it valid, and the lack of whichmakes it void? To acknowledge that any one promise may bevoid is to acknowledge that if any other promise is binding,that is not merely because it is a promise. There must besome further fact on which the validity of a promise depends,and clearly that fact—and not the promise itself—is whatcauses the obligation that a promise is apt in general to carrywith it.

47. A further point: Allow for argument’s sake whatI have disproved; allow that the obligation of a promiseis independent of every other ·circumstance·; allow that apromise is intrinsically binding. Binding on whom? On himcertainly who makes it; there’s no reason why an individualpromise should be binding on those who never made it. TheKing 50 years ago promised my great-grandfather to govern

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A Fragment on Government Jeremy Bentham 2: Forms of Government

him according to Law; my great-grandfather 50 years agopromised the King to obey him according to Law. The Kingjust now promised my neighbour to govern him according toLaw; my neighbour just now promised the King to obey himaccording to Law. So be it! What are these promises—allor any of them—to me? Obviously, to answer this questionsome principle must be resorted to other than that of theintrinsic obligation of promises on those who make them.

48. Now this other principle that keeps coming backto us, what can it be but the principle of UTILITY? That isthe principle which provides us with that reason, the onlyprinciple that does not depend on any higher reason, and isitself the sole and all-sufficient reason for every thesis abouthow we should behave.

·START OF FOOTNOTE KEYED TO THE WORD ‘UTILITY’·

The label ‘the principle of utility’ has recently had added toit—or been replaced by—‘the greatest happiness principle’.This is short-hand for

‘the principle according to which the greatest happi-ness of all those whose interest is in question is theonly right and proper and universally desirable goal ofhuman action in every situation, and especially of thefunctionaries exercising the powers of government’.

The word ‘utility’ does not point to the ideas of pleasure andpain as clearly as the word ‘happiness’ does. Nor does itlead us to the consideration of how many people’s interestsare affected, this being the circumstance that contributesmost to the formation of the standard here in question—thestandard of right and wrong by which alone the proprietyof human conduct, in every situation, can with propriety bejudged. This lack of an obvious enough connection between•the ideas of happiness and pleasure and •the idea of utility,I have sometimes found acting all too efficiently as a bar to

the acceptance that might otherwise have been given to theprinciple of utility. For further elucidation of the principle ofutility (or greatest happiness principle), the reader may liketo see a note inserted in a second edition, now printing, ofmy later work An Introduction to the Principles of Morals andLegislation. The note says: ‘I have heard it described as “adangerous principle”, something that on certain occasions itis “dangerous to consult”. This amounts to saying that it isnot consonant to utility to consult utility—i.e. that it is notconsulting it, to consult it.’

In the second edition, the following paragraph (writtenin 1822) is added to this note: [Not given here. It is prettymuch the same as section V starting on page 66.]

·END OF FOOTNOTE ON ‘UTILITY’·

Chapter 2: Forms of Government

1. At the start of this Essay I divided contents of the‘digression’ we are examining into five parts. I have examinedthe first of them—concerning how government in general wasformed—in chapter 1. We now have to consider the second,concerning the different species or forms that governmentmay assume.

2. The first thing that strikes us in this part of our subjectis the theological flourish it sets out with. God might be saidto be, though in a peculiar sense, our author’s strength! Hequite often uses theology as •an ornament to divert us fromdiscovering the shallowness of his doctrines or as •a sourceof authority to overawe us into not doing so.

3. He has been showing—in the manner examined in thelast chapter—that we must have governors of some sort orother. Now for endowments [see Glossary] to qualify them togovern. As though he wanted to make these endowments

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show the brighter, and to keep them as much as possiblefrom being soiled by the rough hands of impertinent the-oreticians, our author has chosen that they should be ofaethereal texture, and has fetched them from the clouds.

‘All mankind’, he says, ‘will agree that government shouldbe reposed in persons who are most likely to have thequalities the perfection of which are among the attributesof Him who is emphatically styled the Supreme Being: thethree great requisites, I mean, of wisdom, of goodness, andof power.’

But let us see the whole passage as it stands. [Section 4 is

quoted verbatim from Blackstone. Bentham interrupts it at ? to say that

by ‘society’ Blackstone means ‘natural society’, and at ?? to conjecture

that by ‘equal’ he means ‘equal with respect to political power’, of which,

he adds, ‘none of them as yet have any’.]4. ‘But as all the members of society ? are naturally equal

??, it may be asked in whose hands are the reins of govern-ment to be entrusted? To this the general answer is easy;but the application of it to particular cases, has occasionedone half of those mischiefs which are apt to proceed frommisguided political zeal. In general, all mankind will agreethat government should be reposed in such persons in whomthose qualities are most likely to be found, the perfection ofwhich are among the attributes of Him who is emphaticallystyled the Supreme Being; the three grand requisites, I mean,of wisdom, goodness, and of power: wisdom, to discernthe real interest of the community; goodness, to endeavouralways to pursue that real interest; and strength or power,to carry this knowledge and intention into action. These arethe natural foundations of sovereignty, and these are therequisites that ought to be found in every well-constitutedframe of government.’

5. Everything in its place! Theology in a sermon, ora catechism. But in this place any purpose of instruction

would have been much better served without the ·theological·flourish. The only purpose I can see for bringing in the idea ofthat tremendous and incomprehensible Being is to bewilderand entrance the reader, as it seems to have bewildered andentranced the writer. Beginning in this way is beginningat the wrong end: it is explaining ignotum per ignotius [=‘explaining the unknown by the more unknown’ (Latin)]. Rather than•getting from the attributes of the Deity an idea of anyqualities in men, we •get the feeble idea we can form ofthe attributes of the Deity from what we see of the qualitiesof men.

6. We shall soon see whether it is light or darknessthat our author has brought back from this excursion intothe clouds. The qualifications he has picked on for thepeople in whose hands government is to be placed are three:wisdom, goodness, and power. One of these, I suspect, willgive him some trouble to know what to do with. I meanpower: he imported it from the celestial regions because,looking on it as a jewel, it seemed that it would give a lustreto the royal diadem. We shan’t dispute its being found inheaven, and indeed equally at all junctures [see Glossary]. Butthe parallel fails. The earthly governors in question, or tospeak more properly the candidates for government, by thevery supposition ·that they are only candidates·, cannothave any such thing as power at the juncture he is talkingabout. Power is the very quality they are now waiting toreceive, being entitled to receive it by their already having(supposedly) the other two qualities, wisdom and goodness.

7. By ‘power’ here I mean political power—the only sortof power our author could mean, the only sort that is herein question. A little further on we shall find him speakingof this endowment as being possessed in the highest degreeby •a king, a single person. So he clearly can’t intend toinclude natural power—mere organic power, the capacity to

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give the hardest blows—among the attributes of •this godlikepersonage.

8. We see then the dilemma our author’s theology hasconfronted him with by getting him to count power amongthe qualifications of his candidates. Power is either naturalor political. Political power is what they cannot have, for(according to the supposition) that is the very thing they aregoing to get through the establishment of government. So itwould have to be natural power, the natural strength that aman has without the help of government. But if this is whatour author is talking about, then he is saying that a singlemember of a society has more of it than all the rest of thesociety put together!

9. I think in fact that in what our author has said about‘power’ he has been speaking, as it were, by anticipation;and that he means to be speaking not of any power of eitherkind actually possessed by any man or body of men at thejuncture he is talking about, but only a •capacity to retainpolitical power and put it into action whenever it comes tobe conferred. Now, the quantity of actual power that ispossessed is exactly the same in every case, for it is preciselythe supreme power. But as for the •capacity I have spokenof, there do seem indeed to be good grounds for supposing itto subsist in a higher degree in a single man than in a body.

10. A sketch will be sufficient to display these grounds.•The efficacy of power is at least partly in proportionto the promptitude of obedience;

•the promptitude of obedience is partly in proportionto the promptitude of command;

•command is an expression of will; and•a will is sooner formed by one than by many.

I take it that this or something like it is the plain English ofour author’s metaphor, where he tells us (as we shall see insection 32) that ‘a monarchy is the most powerful’ (form of

government) ‘of any, all the sinews of government being knittogether, and united in the hands of the prince.’

11. His next paragraph, short as it is, contains a varietyof matter. a Its first two sentences tell us that he thinks itproper to set aside the question of how each of the particulargovernments that we know of has been formed. b A third saysfor the second time that all governments must be absolutein some hands or other. c In the fourth and last he favoursus with a very comforting piece of news, the truth of whichfew of us perhaps would have suspected if he had not toldus of it. It is that the qualifications he has mentioned asneeding to be possessed by all governors of states are—or atleast once upon a time were—actually possessed by them.·This is said to be true· according to the opinion of somebody,but of what somebody is not altogether clear—whether inthe opinion of these governors themselves or of the personsgoverned by them. Here is the paragraph verbatim.

12. ‘a How the various forms of government we nowsee in the world at first actually began is matter of greatuncertainty, and has occasioned infinite disputes. It is notmy business or intention to enter into any of them. b Howeverthey began, or by what right soever they subsist, there isand must be in all of them a supreme, irresistible, absolute,uncontrolled authority, in which the jura summi imperii, orthe rights of sovereignty, reside. c And this authority isplaced in those hands, wherein (according to the opinion ofthe founders of such respective states, either expressly givenor collected from their tacit approval) the qualities requisitefor supremacy, wisdom, goodness, and power, are the mostlikely to be found.’

13. I shan’t venture to decide whether our author means‘founders’ to refer to those who became the governors of thestates in question, or those who became the governed, orboth together. For all I know, he may have meant neither

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group but some third person. And indeed I am stronglyinclined to suspect that in our author’s large conception, atthe time this paragraph of his was being written,

•the whole universe was represented by the mighty andextensive domains of Athens and Sparta, of which weread so much at school and at college, each consistingof several score of square miles, and

•the whole period of the history of those states wasrepresented by the respective eras of Solon and Ly-curgus.

14. The words ‘founders’, ’opinion’, ’approval’—in shortthe whole tenor of the sentence—brings to one’s view asystem of government utterly different from the generalrun of those we have before our eyes; a system in whichneither caprice, nor violence, nor accident, nor prejudice,nor passion seems to have had any share; a system

•uniform, comprehensive, and simultaneous;•planned with calm deliberation;•established by full and general assent; and thus•of the kind commonly thought to have been laid downby Solon and Lycurgus.

If this is the case, what he had in mind when he said‘founders’ might be neither governors nor governed butsome neutral person; such as those two sages ·Solon andLycurgus·, chosen as they were as a kind of umpires, mightbe considered with regard to the persons who were governorsand governed under the previous constitution, whatever thatwas.

15. But all this is mere conjecture. The proposition is notqualified in this or any other way. It is delivered explicitlyand emphatically in the character of a universal one. ‘InALL OF THEM’, he assures us, ‘this authority’ (the supreme

authority) ‘is placed in those hands, wherein, according tothe opinion of the founders of such respective states, thesequalities of wisdom, goodness, and power are the most likelyto be found.’ This throws a singular light on history. I cansee no end to the discoveries it leads to, all of them equallynew and edifying. For example:

When the Spaniards became masters of the empireof Mexico, a commonplace politician might supposeit was because the Mexicans who had not been ex-terminated could not help it. No such thing! it wasbecause the Spaniards were of the ‘opinion’ or theMexicans themselves were of the ‘opinion’ (which ofthe two is not altogether clear) that in Charles V andhis successors more goodness (of which they had suchabundant proofs) as well as wisdom was likely to befound than in all the Mexicans put together.

The same belief obtained

•between Charlemagne and the German Saxons withrespect to the goodness and wisdom of Charlemagne,

•between William the Norman and the English Saxons,•between Mahomet II and the subjects of John Paleolo-gus,

•between Odoacer and the subjects of Augustulus,•between the Tartar Ghengis Khan and the Chinese ofhis time,

•between the Tartars Chang-ti and Cam-ghi, and theChinese of their times,

•between the Protector Cromwell and the Scotch,•between William III and the Irish papists,•between ·Julius· Caesar and the Gauls,•between the so-called Thirty Tyrants and the Atheni-ans, whom our author seems to have had in view;1

1 [B&H have a footnote here, explaining all of these historical references.]

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to mention only these examples, out of as many hundredas might be required. All this, if we may trust our author,he has the ‘goodness’ to believe; and by such lessons is thepenetration of students to be sharpened for piercing into thedepths of politics!

16. So much for the introductory paragraph. The mainpart of the subject is treated of in six others, whose generalcontents are as follows.

17. In the first he tells us how many different forms of gov-ernment there are according to the division of the ancients,namely three: Monarchy, Aristocracy, and Democracy. Headopts this division.

18. The next is to tell us that by ‘the sovereign power’ hemeans ‘the power of making laws’.

19. In a third he tells us the advantages and disadvan-tages of these three different forms of government.

20. In a fourth he tells us that these ·three· are all theancients would allow of.

21. A fifth is to tell us that the British form of governmentis different from each of them; being a combination of all,and having the advantages of all.

22. In the sixth and last he shows us that it could nothave those advantages if, instead of being what it is, it wereany one of the other three; and he tells us what it is thatmay destroy it. These last two paragraphs will be examinedin my chapter 3.

23. Monarchy is the form of government in which thepower of making laws is lodged in the hands of a singlemember of the state in question. Aristocracy is the form ofgovernment in which the power of making laws is lodged inthe hands of several members. Democracy is the form ofgovernment in which the power of making laws is lodged inthe hands of ‘all’ of them put together.

These, according to our author, are the definitions of the

ancients; so he has no difficulty adopting them. [The next two

sections are quoted verbatim from Blackstone.]24. ‘The political writers of antiquity will not allow more

than three regular forms of government; the first, whenthe sovereign power is lodged in an aggregate assembly,consisting of all the members of a community, which iscalled a democracy; the second, when it is lodged in acouncil composed of select members, and then it is styled anaristocracy; the last, when it is entrusted in the hands of asingle person, and then it takes the name of a monarchy. Allother species of government they say are either corruptionsof, or reducible to these three.

25. ‘By the sovereign power, as was before observed, ismeant the making of laws; for wherever that power resides,all others must conform to, and be directed by it, whateverappearance the outward form and administration of thegovernment may put on. For it is at any time in the optionof the legislature to alter that form and administration by anew edict or rule, and to put the execution of the laws intowhatever hands it pleases; and all the other powers of thestate must obey the legislative power in the execution of theirseveral functions, or else the constitution is at an end.’

26. So he has arrived at three regular simple forms ofgovernment (setting aside the anomalous complex one thatwe have in England) and at three qualifications to divideamong them. He told us a while ago that each form ofgovernment must have some share in each of these qualities,and it is easy to see how their allotments will be made out.Each form of government will have one of these qualities inperfection [see Glossary], taking its chance (so to speak) for ashare in the other two.

27. There is not much to choose among these threeforms of government, according to our author’s account ofthem. Each of them has a qualification to itself, and each

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is completely characterised by this qualification. No hint isgiven of any rank-ordering of these qualifications. If therewere a dispute concerning the preference to be given to anyof these forms of government, as proper a method as any ofsettling it —to judge from our author’s view of them—wouldbe to flip a coin. Hence we can infer that all the governmentsthat ever were or will be (except a very particular one thatI shall come to soon, namely our own) are on a par: thatof Athens with that of Persia, that of Geneva with that ofMorocco; because, he tells us, they are all ‘corruptions ofor reducible to’ one of these ·three·. This is good news. Alegislator cannot go wrong. He can save himself the expenseof thinking. . . .

28. As for our own ·British· form of government, how-ever,. . . .being made out of the other three it will have theadvantages of all of them put together, with none of thedisadvantages—the disadvantages vanishing at the word ofcommand (or even without it) as not being suitable to ourauthor’s purpose.

29. At the end of the paragraph that gives us theabove definitions there is one observation that is a littlepuzzling. Our author tells us that there are ‘other speciesof government’ besides these ·three·. but that those othersare either ‘reducible to’ or ‘corruptions of these’. Well, it isnot so easy to understand what there is in any of these tobe corrupted. Do not forget that the essence of these threeforms of government, according to him, consist solely andentirely in something to do with number, specifically in theratio of the number of the governors (i.e. those in whosehands is lodged this ‘power of making laws’) to that of thegoverned. If the number of the former stands to the numberof the latter as one to all, then the government is a monarchy;

if it is all to all, then it is a democracy; and if it is n to allwhere n is between one and all, then it is an aristocracy.

Well, if we can conceive a fourth number that is neither•one nor •all nor •something between one and all, we canconceive a form of government that might be shown to be acorruption of one of these three. If not, we must look for thecorruption somewhere else, perhaps in our author’s reason.1

30. We may indeed meet with several other harsh namesfor forms of government, but these were only so many namesfor one or other of those three. We often hear of a ‘tyranny’;but this is simply the name a man gives to our author’smonarchy •when he is out of humour with it; it is thegovernment of number one. We sometimes hear of a sort ofgovernment called an ‘oligarchy’; but this is just the name aman gives to our author’s aristocracy •in the same case. It isstill the government of some number n between one and all.And we hear now and then of a sort of government fit to breakone’s teeth, called an ‘ochlocracy’ [from Greek meaning ‘mob rule’]:but this is merely the name a man gives to a democracy•in the same case. It is still the sort of government whichaccording to our author is the government of all.

31. Let us now see how he has distributed his threequalifications among his three forms of government. Weshall find that he has bestowed

•on monarchy, the perfection of power,•on aristocracy, wisdom,•on democracy, goodness;

each of these forms of government having (we may suppose)just enough of the two qualifications other than its ownpeculiar [see Glossary] one to make up the complement of‘qualities requisite for supremacy’. Kings are (indeed were,before they were kings, since this qualification was what led

1 If we can take his own word for it, there cannot be a more suitable place to look for corruption in. ‘Every man’s reason is corrupt’; and not only that,but ‘his understanding full of ignorance and error’. . . . It would be impolite to challenge what a man tells us about himself, from his own experience!

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their subjects to make them kings) as strong as so manyHercules’s; but there is not much to say about their wisdomor their goodness. The members of an aristocracy are somany Solomons; but they are not such sturdy folks asyour kings; nor—to tell the truth—do they have much morehonesty than their neighbours. As for the members of ademocracy, they are the best sort of people in the world; buton the whole they are but a puny sort of gentry as to strength,are apt to be a little defective in their understanding. [The

next two sections are quoted verbatim from Blackstone.]

32. ‘In a democracy, where the right of making lawsresides in the people at large, public virtue or goodness ofintention, is more likely to be found, than either of the otherqualities of government. Popular assemblies are frequentlyfoolish in their contrivance, and weak in their execution;but generally mean to do the thing that is right and just,and have always a degree of patriotism or public spirit. Inaristocracies there is more wisdom to be found than in theother frames of government; being composed, or intended tobe composed, of the most experienced citizens; but there isless honesty than in a republic, and less strength than in amonarchy. A monarchy is indeed the most powerful of any,all the sinews of government being knit together and unitedin the hand of the prince; but then there is imminent dangerof his employing that strength to improvident or oppressivepurposes.’

33. ‘Thus these three species of government have all ofthem their several perfections and imperfections. Democ-racies are usually the best calculated to direct the goal of

a law; aristocracies to invent the means by which that goalshall be obtained; and monarchies to carry those means intoexecution. And the ancients, as was observed, had in generalno idea of any other permanent form of government but thesethree; for though Cicero declares himself of opinion, esseoptimé constitutam rempublicam, quae ex tribus generibusillis, regali, optimo, et populari sit modicé confusa; yet Tacitustreats this notion of a mixed government, formed out of themall, and partaking of the advantages of each, as a visionarywhim; and one, that if effected, could never be lasting orsecure.’

34. In the midst of this fine-spun ratiocination, anaccident has happened, of which our author seems not tobe aware. One the qualifications he has been telling us ofhas somehow become vacant; the form of government hedesigned it for has unluckily slipped through his fingers inthe handling. I mean democracy, which he—and, accordingto him, the ancients—describe as the government of all. Now‘all’ is a great many; so many that I suspect it will be a ratherdifficult matter to find for these high and mighty personagesenough power for them to make even a decent showing with.The members of this redoubtable commonwealth will beeven worse off for subjects, I suspect, than Trinculo in theplay,1 or than the potentates whom some later navigatorsfound lording it over a Spanish settlement where there werethree members of the government and only one subject. Lethim examine it a little and it will turn out to be preciselythe sort of ‘government’ that is in place where there is nogovernment at all. Our author, we may remember, had

1 [In Shakespeare’s The Tempest the jester Trinculo thinks of himself as king of an island that has only about three other people on it.]1 [This footnote is keyed to the sentence-end at the top of the next page.] It is curious that the same persons who tell you (having read this) that •democracy is

a form of government in which the supreme power is vested in all the members of a state will also tell you (having also read this) that •the Atheniancommonwealth was a democracy. Now the truth is that in that commonwealth, taking women, children, and slaves to be among the inhabitants ofthe Athenian state, not one tenth of those inhabitants ever partook of the supreme power. (See Mr Hume’s essay on the populousness of ancient

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A Fragment on Government Jeremy Bentham 3: British Constitution

shrewd doubts about the existence of a state of nature; granthim his democracy and it contains a state of nature.1

35. The qualification of goodness belonged to the govern-ment of all while there was such a government. This havingtaken its flight, as we have seen, to the region of nonentities,the qualification that was designed for it remains on ourauthor’s hands; so he is at liberty to make a compliment ofit to aristocracy or to monarchy, whichever best suits him.Perhaps it would be as well to give it to monarchy, becausethe entitlement of that form of government to its own peculiarqualification, power, is as we have seen a rather equivocalone. Or he may set aristocracy and monarchy to cast lots forit, which may be as good a way as any of settling matters.

Chapter 3: British Constitution

1. With a set of data such as we have seen in chapter 2, wemay judge whether our author can meet with any difficulty inproving the British constitution to be the best of all possiblegovernments, or indeed ·in proving· anything else that hehas a mind to. In his paragraph on this subject there areseveral things that claim our attention. But first we musthave it under our eye. Here it is [the next two sections].

2. ‘But happily for us in this island the British Consti-tution has long remained, and I trust will long continue, astanding exception to the truth of this observation.2 For,as with us the executive power of the laws is lodged in asingle person, they have all the advantages of strength anddispatch that are to be found in the most absolute monarchy:and, as the legislature of the kingdom is entrusted to three

distinct powers entirely independent of each other; first, theKing; secondly, the Lords Spiritual and Temporal, which isan aristocratic assembly of persons selected for their piety,their birth, their wisdom, their valour, or their property; andthirdly, the House of Commons, freely chosen by the peoplefrom among themselves, which makes it a kind of democracy;as this aggregate body, actuated by different springs, andattentive to different interests, composes the British Parlia-ment, and has the supreme disposal of everything; therecan no inconvenience be attempted by either of the threebranches, but will be withstood by one of the other two;each branch being armed with a negative power sufficientto repel any innovation which it shall think inexpedient ordangerous.

3. ‘Here then is lodged the sovereignty of the BritishConstitution; and lodged as beneficially as is possible forsociety. For in no other shape could we be so certain offinding the three great qualities of government so well andso happily united. If the supreme power were lodged in anyone of the three branches separately, we must be exposed tothe inconveniencies of either absolute monarchy, aristocracy,or democracy; and so lack two of the principal ingredientsof good polity, either virtue, wisdom, or power. If it werelodged in any two of the branches; for instance, in the Kingand House of Lords, our laws might be providently madeand well executed, but they might not always have the goodof the people in view: if lodged in the King and Commons,we should lack that circumspection and mediatory caution,which the wisdom of the Peers is to afford: if the supremerights of legislature were lodged in the two Houses only,and the King had no negative on their proceedings, they

nations.) Civil lawyers will solemnly tell you that a slave is nobody; as common lawyers will say that a bastard is the son of nobody. But to anunprejudiced eye, the condition of a state is the condition of all the individuals, without distinction, who compose it.

2 [This refers to the ‘observation’ in chapter 2, sections 24–25 that every sound government must have one of the three forms paraded by the ancients.]

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might be tempted to encroach on the royal prerogative, orperhaps to abolish the kingly office, and thereby weaken (ifnot totally destroy) the strength of the executive power. Butthe constitutional government of this island is so admirablytempered and compounded, that nothing can endanger orhurt it, but destroying the equilibrium of power between onebranch of the legislature and the rest. For if ever it shouldhappen that the independence of any one of the three shouldbe lost, or that it should become subservient to the viewsof either of the other two, there would soon be an end ofour constitution. The legislature would be changed fromthat which was originally set up by the general consent andfundamental act of the society; and such a change, howevereffected, is, according to Mr Locke (who perhaps carries histheory too far) at once an entire dissolution of the bandsof government, and the people would be reduced to a stateof anarchy, with liberty to constitute to themselves a newlegislative power.’

4. In considering the first of these two paragraphs, thefirst thing we encounter is a certain executive power, thatnow for the first time bolts out on us without warning orintroduction.

The only power our author has been speaking of untilnow is legislative power. It is to this, and only this, thathe has given the name ‘sovereign power’. It is the differentdistributions of this power that he makes the characteristicsof his three different forms of government. It is with thesedifferent distributions of the legislative power that he saysare connected the various qualifications laid down by him as‘requisites for supremacy’—qualifications the possession ofwhich constitute all the advantages that can belong to anyform of government. Coming then to the British constitution,the superior degree in which its legislative body possessesthese qualifications are supposed to constitute its peculiar

excellence. It has the advantage of a monarchy by virtueof possessing the qualification of strength. But how does it(according to our author) have the qualification of strength?By any disposition made of the legislative power? By thelegislative power’s being lodged in the hands of a singleperson, as in a monarchy? No; but by a disposition made ofa new power, which appears as it were parenthetically—a newpower that we now hear of for the first time, an executivepower that has not been descriptively distinguished fromlegislative power.

5. What then is this same executive power? I suspect thatour author would not find it easy to inform us. ‘Why not?’says an objector. ’Is it not that power which in this countrythe King has in addition to his share in the legislative power?’Be it so: the difficulty for a moment is staved off. But it is farfrom being resolved, as a few questions will soon show us.•Is this power only what the King really has, or is it all thathe is said to have?•Does it include judiciary power? If it does, does it includethe power of making not only particular decisions and ordersbut also general, permanent, spontaneous regulations ofprocedure such as judges sometimes make?•Does it include supreme military power? In ordinary timesas well as in a time of martial law?•Does it include the supreme fiscal power; and in generalthat power that extends over the public money as well asover every other article of public property, and may be styled‘dispensatorial’? [Bentham has footnotes explaining what he means

by ‘fiscal’ and ‘dispensatorial’.]

•Does it include the power of granting patents for inventions,and charters of incorporation?•Does it include the right of making bye-laws in corporations?And is the right of making bye-laws in corporations superior

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to the right of conferring the power to make them? If so, thereis an executive power that is superior to a legislative one.

•Does this executive power include the right of substitutingthe laws of war for the laws of peace, and the laws of peacefor the laws of war?

•Does it include the right to make treaties with foreign powersthat will restrain the trading activities of its own subjects?

•Does it include the right of delivering over, by virtue of thesuch treaties, large bodies of subjects to foreign laws?

Anyone who wants to •understand what power is executiveand not legislative, and what is legislative and not executive;to •delineate the different species of constitutional powers;to •describe what is or what ought to be the constitution of acountry, and particularly of this country—let him think ofthese things!

6. In the next place we are told in parenthesis (it beinga matter so plain as to be taken for granted) that ‘eachof these branches of the legislature is independent ’, yes‘entirely independent’, of the other two. Is this really thecase? Those who consider •the influence the King and somany of the lords have in the election of members of theHouse of Commons; •the King’s power at a minute’s warningto put an end to the existence of any House of Commons; •theinfluence the King has over both Houses through offices ofdignity and profit given and taken away again at his pleasure;•the fact that the King depends for his daily bread on bothHouses, but more particularly on the House of Commons;not to mention •a variety of other details to the same effect,will judge how precisely our author was writing when he soroundly asserted the affirmative [asserted that the three branches

of the English government are entirely independent of one another].7. One parenthesis more (this sentence teems with

parentheses within parentheses): To this we are indebted for

a very interesting piece of intelligence, namely a full and trueaccount of the personal merits of the members of the Houseof Lords. He is enabled to do this by means of simple andingenious contrivance, namely of looking at their titles. Bylooking at men’s titles, our author perceives not merely thatthey ought to have certain merits, not that there is reasonto wish they had them, but that they do actually have them,and that it is by having those merits that they came to havethese titles. Seeing that some are bishops, he knows thatthey are pious; seeing that some are peers, he knows thatthey are wise, rich, valiant.

·START OF A FOOTNOTE·

Our author tells us that the House of ‘Lords spiritual andtemporal’ is ‘an aristocratic assembly of persons selectedfor their piety, their birth, their wisdom, their valour, ortheir property’. I think I have distributed these endowmentsas he must have intended them to be distributed. Birthto members of that assembly who have their seat in it bydescent; and wisdom, valour, and property to those who arethere by creation [i.e. were given their peerage instead of inheriting

it]. So much for the temporal peers. And piety, singly butentirely, among my Lords the Bishops. If these right reverendpersons could lay a decent claim to any of the other threeendowments, it would be wisdom; but it would be a poorcompliment to attribute worldly wisdom to them, and thewisdom that comes from above is fairly included under piety;so I conclude that when they are secured in the exclusivepossession of this grand virtue of piety, they have all thatwas intended for them.

There is a remarkable period in our history at which,measuring by our author’s scale, these three virtues seemto have been at the boiling point. It was in the year 1711 inQueen Anne’s reign. In that auspicious year, wisdom, valour,

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and property issued forth, it seems, with such exuberance asto furnish merit enough to stock a dozen respectable personswho were all made Barons in a day. A right reverend andcontemporary historian (see Bishop Burnet’s History of myown Times) was so little versed in our author’s method of‘discerning of spirits’ as to fancy that what led to the suddenintroduction of so many new members into the House ofLords was merely the need to make a majority. But I leaveit to those who are read in the history of that time to judgewhat basis there can be for so romantic an imagination! Asfor piety, the peculiar endowment of the mitre, the stockthere is of that virtue, must be at all times pretty much on alevel, and without question always at a maximum. We canbe all the more sure of this since in another place he assuresus, with regard to ecclesiastical matters, that ‘everything isas it should be’.

·END OF FOOTNOTE·

8. The more we consider his way of applying the common-place notions of the three forms of government to our owngovernment, the more aware we’ll be of the wide differencebetween reading and thinking. He finds our government tobe a combination of these three: it has a monarchic branch,an aristocratic, and a democratic. The aristocratic is theHouse of Lords; the democratic is the House of Commons.No doubt our author had read much, at school and at college,of the wisdom and gravity of the Spartan senate; something,probably in Montesquieu and elsewhere, about the Venetiansenate. He had read of the turbulence and extravagance ofthe Athenian mob. Full of these ideas, the House of Lordswere to be our Spartans or Venetians; the House of Commons,our Athenians. With respect then to the point of wisdom(never mind honesty) the consequence is obvious: the Houseof Commons, however excellent in point of honesty, is an

assembly with less wisdom than the House of Lords. This iswhat our author makes no scruple of assuring us. A Duke’sson gets a seat in the House of Commons; that is enough tomake him the very model of an Athenian cobbler!

9. Let us find out, if we can, what can have led to thisnotion of the lack of wisdom in the members of a democracy,and of the abundance of it in those of an aristocracy. Thenwe shall then how appropriate it is to transfer such a notionto our Houses of Lords and Commons.

In the members of a democracy in particular, there islikely to be a lack of wisdom. Why? Most of them arepoor; so when they begin to undertake the management ofaffairs, they are uneducated; so they are illiterate; so they areignorant—and unwise, if that is what is meant by ‘ignorant’.Depending for their daily bread on the profits of some pettytraffic, or the labour of some manual occupation, they arenailed to the work-board or the counter. In the businessof government, it is only by fits and starts that they haveleisure so much as to act; they have no leisure to reflect. So:ignorant they start, and ignorant they continue. But to whatextent is this the case with the members of our House ofCommons?

10. On the other hand, the members of an aristocracy,being few, are rich: either they are members of the aristoc-racy because they are rich or they are rich because they aremembers of the aristocracy. Being rich, they are educated;being educated, they are learned; being learned, they areknowing. They are at leisure to reflect as well as to act.They may therefore naturally be expected to become moreknowing, i.e. more wise, as they persevere. To what extent isthis more the case with the members of the House of Lordsthan with those of the House of Commons? The fact is, aseverybody sees, that the members of the House of Commonsare as much at leisure as those of the House of Lords, or if

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they are occupied, they are occupied in a way that tends togive them a more than ordinary insight into some particulardepartment of government. In whom shall we expect to findso much knowledge of Law as in a professional lawyer? ofTrade as in a merchant?

11. But wait! When our author attributes to the membersof an aristocracy more wisdom than to those of a democracy,he has a reason of his own. Let us try to understandit, and then apply it as we have applied the others. It isthis: in aristocratic bodies there is more experience—at leastit is ‘intended’ by somebody that there should be, whichapparently serves the same purpose as if there was:

‘In Aristocracies there is more wisdom to be found,than in the other frames of government; being com-posed, or intended to be composed, of the most expe-rienced citizens.’

So we are to take it for granted on this ground that themembers of the House of Lords have more wisdom amongthem than those of the House of Commons. This articleof experience is to provide us with a particular ground forattributing more wisdom to the members of the upper Housethan to those of the lower.

12. Our author has not told us how a member of anaristocracy, as such, is to have attained more ‘experience’than a member of a democracy, or what this experienceconsists of. Is it experience of things that are preparatoryto but different from the business of governing? If so,this should be called ‘knowledge’, ·not ‘experience’·. Is itexperience of the actual business of governing? Let ussee. Suppose that a member of the democracy starts onthis business on the very same day as a member of thearistocracy. Is one of them more experienced than the otheron that day? or on that day’s tenth anniversary?

13. Those who recollect what I said in section 9 above may

answer without hesitation ‘on that day’s tenth anniversary’,for the reason I gave there: namely the lack of leisurethat most of the numerous members of a democracy mustnecessarily labour under, more than those of an aristocracy.But what has our author said that even hints at this?

14. So much with respect to aristocracies in general. Ithappens that the particular branch of our own governmentthat he has called ‘aristocratic’, the House of Lords, doesactually have greater opportunities for acquiring experiencethan does the other branch, the House of Commons, whichhe has called ‘democratic’. But why is this? Not because ofanything in the characteristic natures of those two bodies—not to one’s being aristocratic and the other democratic—butto an entirely foreign and accidental circumstance, whichwe shall see presently. But let us observe his reasoning.The proposition to be proved is: The House of Lords is anassembly that behoves to have more wisdom in it than theHouse of Commons. Now for the proof:

•The former is an aristocratic assembly, the latter ademocratic one.

•An aristocratic assembly has more experience than ademocratic one; therefore

•The House of Lords has more wisdom than the Houseof Commons. Q.E.D.

This whole argument rests on the proposition that an aris-tocratic assembly, as such, has more experience than ademocratic one; but our author has given us no reason tobelieve this concerning aristocratic assemblies in general.It does happen to be the case with respect to our House ofLords in comparison with our House of Commons, simplybecause the members of the House of Lords, when once theyenter it, are there for life, whereas members of the House ofCommons are in it for only seven-year terms and sometimesless.

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15. By ‘experience’ here I mean ‘opportunity of acquiringexperience’; for actual experience depends on other concur-rent causes.

16. But it is from superiority of experience alone thatour author derives superiority of wisdom. He has indeedthe old proverb in his favour: ‘Experience is the mother ofwisdom.’ So be it; but then interest is the father. There iseven an interest that is the father of experience. Among themembers of the House of Commons, though none are sopoor as to be illiterate, there are many whose fortunes areyet to be made. The fortunes of those of the House of Lords(I speak in general) are made already. The members of theHouse of Commons may hope to become members of theHouse of Lords. The members of the House of Lords have nohigher House of Lords to rise to. •Is it natural for those tobe most active have the most interest to be so or those whohave the least? •Are the experienced those who are the mostactive or those who are the least? •Does experience cometo men when asleep, or when awake? •Is it the members ofthe House of Lords that are the most active, or of the Houseof Commons? To put it plainly: is more business done inthe House of Lords or in the House of Commons? •Was itafter the fish was caught that the successor of St Peter usedthe net, or was it before?1 •In a word is there most wisdomordinarily where there is least to gain by being wise, or wherethere is most?2

17. A few words more about the characteristic qualifi-cations, as our author states them, of our House of Lords.Because they are an aristocratic assembly, experience isto provide them with wisdom; we have come this far, buthe now pushes the deduction a step further. Wisdom is toprovide them with ‘circumspection and mediatory caution’—qualifications that we would see nothing of if it weren’t forthem. As to ‘circumspection’ I say nothing; I hope that itis not lacking to either House. But what about ‘mediatorycaution’? There is so little business that originates in theHouse of Lords that our author seems to forget that thereis any. But there is some. When a bill then originates withthe Lords and is sent down to the Commons, which of theHouses has to exercise ‘mediatory caution’?

18. So much for these two branches of our legislature, solong as they continue to be what, according to our author’sprinciples, they are at present: the House of Lords thearistocratic branch, the House of Commons the democraticone. . . . By what characteristic does our author distinguishan aristocratic legislative body from a democratic one? Bythat of number: by the number of the persons that composethem; by that and that alone, for he has given no other. [Noth-

ing that Bentham has quoted from Blackstone implies that the House of

Commons is democratic because of how many people it contains; it seems

reasonable to credit him with thinking that it is democratic because

of how many people it represents or how many voters it is answerable

1 Everyone has heard the story of him who rose from being a fisherman to being an Archbishop and then Pope. While Archbishop, it was his customevery day, after dinner, to have a fishing net spread on his table as a reminder, as he used to say, of the meanness of his origins. This farcical displayof humility contributed considerably in those days to the increase of his reputation. Soon after his elevation to St Peter’s throne, one of his intimatesremarked one day when dinner was over that the table was not decked as usual. ‘Peace!’, answered the Holy Father, ‘when the fish is caught, thereis no occasion for the net.’

2 In the House of Commons itself, is it by the opulent and independent country gentlemen that the chief business of the House is transacted, or byaspiring and perhaps needy courtiers? The man who would persevere in the toil of government with no reward but the favour of the people is certainlythe man for the people to choose. But such men are at best but rare. Were it not for the children of corruption I have been speaking of, the businessof the state, I suspect, would stagnate.

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to. If that is right, Bentham’s forthcoming jibe is entirely unfair.] Bythat criterion, the House of Lords is indeed at present thearistocratic branch, and the House of Commons—at leastin comparison with the other—the democratic one. But ifthe list of nobility swells at the rate we have sometimes seenit do, it may not be so very long before the assembly of theLords will be more numerous than that of the Commons.Which will then be the aristocratic branch of our legislature?On our author’s principles, the House of Commons. Whichthe democratic? The House of Lords.

19. The goal. . . .of this sublime and edifying dissertationis a demonstration (for by no less a title ought it to be called)he has been giving us of the perfection of the British form ofgovernment. It is based, we may have observed, altogether onthe properties of numbers. These properties are newly discov-ered, and have an extraordinary constitution that lets thembe moral properties; but it seems that they are neverthelessproperties of numbers. If we can find these characteristicproperties of the three forms of government anywhere, itis in the nature of numbers. [He goes on to say that ademonstration involving numbers should be expressiblein arithmetical form; that Blackstone has the ‘substantialhonour’ of having already provided the demonstration itself;and that he (Bentham) will merely perform the ‘humble task’of getting it into that form, ‘a mere technical operation’.]

20. [He then offers a bizarre and tiresome piece ofpseudo-arithmetic, with pluses and minuses in front of thenames of moral qualities. Its absurdity is supposed to countagainst Blackstone, but it is not well enough done to countfor or against anything. It is omitted from this version.]

21. So much for the British Constitution; and for thegrounds of that pre-eminence which it boasts—not without

reason, I trust—above all others that are known. Such isthe idea our author gives us of those grounds.’You are notsatisfied with it then?’, says someone. Not perfectly. ’Thenwhat is your own ·idea of those grounds·?’ In truth this ismore than I have yet quite settled. I may have settled it withmyself, and not think it worth giving; but if I ever do thinkit worth giving, it will hardly be in the form of a commenton a digression stuffed into the belly of a definition! At anyrate it is not likely to be much wanted by anyone who hasread what has been given us on this subject by an ingeniousforeigner;1 since it is to a foreigner we were destined to owethe best idea that has yet been given of a subject so muchour own. Our author has copied; but Monsieur de L’Olmehas thought. The topic that our author has thus broughton the carpet (let anyone judge with what necessity) is inrespect to some parts of it that we have seen of a ratherinvidious [see Glossary] nature. But since it has been broughton the carpet, I have treated it with the plainness with whichan Englishman of all others is bound to treat it, because anEnglishman can treat it thus and be safe. I have said whatthe subject seemed to demand, without any fear of givingoffence, but also without any wish to do so; resolving notto let myself consider how this or that man might take it.I have spoken without sycophantic respects indeed, yet Ihope not without decency; certainly without any partisananger. I chose to leave it to our author to compliment menin the lump, and to stand aghast with admiration [Bentham’s

phrase] at the virtues of men unknown [see section 7 above]. Ourauthor will do what he finds appropriate. For my part, if Iever sing eulogies to great men, it will be not because theyoccupy their station but because they deserve it.

1 Jean Louis Delolme, Constitution de l’Angleterre.

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A Fragment on Government Jeremy Bentham 4: Right to Make laws

Chapter 4: Right of the Supreme Power toMake laws

1. We now come to the third topic touched on in the digres-sion, namely what our author calls ‘the right the supremepower has of making laws’. This topic occupies one prettylong paragraph. The title I give it here is the one that he hasfound for himself in the immediately following paragraph.This is fortunate, because it would have been to the lastdegree distressing if I had been obliged to find a title for itmyself. To give a discourse a title is to represent the drift ofit. But to represent the drift of this is a task that defies myutmost efforts as long as I confine my consideration to theparagraph itself.

2. Such conjectures as I have been able to make about itare based on another passage or two that we have alreadyseen starting up in distant parts of this digression. But Icould not have ventured to rely on them in providing theparagraph with a title framed by myself. There was toomuch danger of misrepresentation—a kind of danger thatimminently threatens a man who ventures to put a precisemeaning on a discourse that in itself has none. I will just saythat what he is really aiming at seems to be to convince usthat in every state there must be a power that is absolute insome hands or other. I mention it thus prematurely so thatthe reader may have some clue to guide him in his progressthrough the paragraph; which it is now time I should recite.[It is given, verbatim, in section 3.]

3. ‘Having thus cursorily considered the three usualspecies of government, and our own singular constitution,selected and compounded from them all, I proceed to observe,that, as the power of making laws constitutes the supremeauthority, so wherever the supreme authority in any stateresides, it is the right of that authority to make laws; that is,

in the words of our definition, to prescribe the rule of civilaction. And this may be discovered from the very goal andinstitution of civil states. For a state is a collective body,composed of a multitude of individuals united for their safetyand convenience, and intending to act together as one man.If it therefore is to act as one man, it ought to act by oneuniform will. But in as much as political communities aremade up of many natural persons, each of whom has hisparticular will and inclination, these several wills cannotby any natural union be joined together, or tempered anddisposed into a lasting harmony, so as to constitute andproduce that one uniform will of the whole. It can thereforebe no otherwise produced than by a political union; by theconsent of all persons to submit their own private wills tothe will of one man, or of one, or more assemblies of men, towhom the supreme authority is entrusted: and this will ofthat one man, or assemblage of men is, in different states,according to their different constitutions, understood to belaw.’

4. The other passages that suggested the construction Ihave ventured to put on this will be mentioned by and by.First, let us see what we can make of the paragraph by itself.

5. The obscurity in which the first sentence of this para-graph is enveloped is so great that I don’t know how to bringit to light without borrowing a word or two from logicians.Setting aside the preamble, the body of the sentence, namely

‘as the power of making laws constitutes the supremeauthority, so wherever the supreme authority in anystate resides, it is the right of that authority to makelaws’,

may be considered as constituting the sort of syllogism thatlogicians call an enthymeme. An enthymeme consists oftwo propositions, a consequent and an antecedent. His an-tecedent: ‘The power of making laws constitutes the supreme

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authority.’ His consequent: ‘Wherever the supreme authorityin any state resides, it is the right of that authority to makelaws.’1

This antecedent and this consequent, for any differenceI can perceive in them, if they were correctly worded wouldmean precisely the same thing. After saying that ‘the powerof making laws constitutes the supreme authority’, to tell usthat therefore ‘the supreme authority’ is (or has) the power(or the right) of making laws, seems to be giving us muchthe same sort of information as would telling us that a thingis so because it is so. . . . That by the ‘sovereign power’ hemeant ‘the power of making laws’, this or something like itis no more than what he had told us over and over and overagain, with singular energy and anxiety, on his pages 46, 49,and I don’t know how many other pages. Always taking care,for precision’s sake, to give a little variety to the expression:the words ‘power’ and ‘authority’ sometimes seemingly putfor the same idea, sometimes seemingly opposed to eachother; both of them sometimes denoting that fictitious beingthe abstract quality, sometimes the real being or beings, theperson or persons supposed to have that quality. Let usdisentangle the sense from these ambiguities; let us learnto speak distinctly of •the persons and of •the quality weattribute to them. Then let us try again to find a meaning forthis perplexing passage.

6. We may suppose our author to say that by the ‘supremeauthority’ ‘I mean the same thing as when I say the powerof making laws’. This is the proposition I called attention toabove, under the name of the antecedent. So this antecedentis a definition of the phrase ‘supreme authority’. Now todefine a phrase is to translate it into another phrase that issupposed to be better understood and expresses the same

ideas. So the supposition here is that the reader already had,unaided, a good enough understanding of the meaning ofthe phrase ‘power of making laws’; and that he had less (ifany) understanding of the meaning of the phrase ‘supremeauthority’. On the basis of this supposition, he is beinggiven a clear understanding the latter by being informed thatit is synonymous to the former. The definition will still beessentially the same, only a little more fully and preciselyworded, when the word ‘person’ is added to it: for a personto have the supreme authority is for a person to have thepower of making laws. This then is what in substance hasbeen laid down in the antecedent.

7. Now let us consider the consequent, which when de-tached from the context can be treated as a sentence of itself.‘Wherever the supreme authority in any state resides, it isthe right of that authority to make laws.’ By ‘wherever’, I takeit for granted, he means ‘in whatever persons’; by ‘authority’he means ‘power’ in the earlier part of the sentence, and‘persons’ in the later part of it. Corrected therefore, thesentence will stand thus: In whatever persons in any statethe supreme power resides, it is the right of those persons tomake laws.

8. The only word I have not dealt with is ‘right’. Andindeed I don’t know what to think of this, whether our authoreven had a meaning for it. It is inserted only in the later partof the sentence, not in the earlier part. Its omission from theearlier part may have happened by accident, or it may havebeen made by design. If by accident, then the idea annexedto the word ‘right’ in the later part of the sentence was meantto be included in the earlier part as well. In that case, we arenot changing the meaning of the sentence if we let ‘right’ beexpressed in the earlier part. Then the sentence as a whole

1 [A normal syllogism has two premises and a conclusion; in an enthymeme, one premise is suppressed, leaving only two propositions, a premise anda conclusion. Bentham focuses on the two-proposition structure, without (it seems) making anything of the notion of a suppressed premise.].

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will stand thus:

In whatever persons the right of exercising supremepower in any state resides, it is the right of thosepersons to make laws.

If it is true—and I am apt to think it is—that the omission of‘right’ from the earlier part of the sentence was accidental, wesee once more, beyond all doubt, that the consequent in thisenthymeme is a mere repetition of the antecedent. We mayjudge then whether we are likely to gain from considering‘the goal and institution of civil states’ or the like any furtherconviction of the truth of this conclusion than it presentsus of itself. We may also form some judgment concerningwhat use or meaning there is likely to be in the assemblageof words that is to follow.

9. However improbable it is, it’s possible that the omis-sion I have been speaking of was designed. If so, we are tounderstand that the word ‘right’ was meant to introduce anew idea into the later part of the sentence, additional to any-thing meant by the earlier part. . . . The sense of the sentenceis then that whatever persons do actually exercise supremepower (i.e. according to the antecedent of the enthymeme,the power of making laws), those persons have the right toexercise it. But then what is given as a consequence doesnot in any respect follow from the antecedent; and nothingcan be made of it except what is altogether foreign to therest of the discourse. So much, indeed, that attributing thismeaning to the sentence seems less probable, as well as lessfavourable to our author, than concluding that he had nomeaning at all for it.

10. Let us now try what we can make of the remainder ofthe paragraph. Being ushered in by the word ‘for’, it seemsto lay claim to being an argument. We have seen ·in sections

1 and 2 above· that this argument sets out without an object,but now it seems to have found something like one, as if ithad picked it up along the way. This object, if I mistake it not,is to persuade men that the supreme power—i.e. the personor persons who exercise the supreme power in a state—oughtto be obeyed in everything, without exception. What menintend to do when they are in a state, he says, is to act as ifthey were ·collectively· ‘one man’. But one man has only onewill of his own. So what they intend—or what they ought tointend (a slight difference that our author seems not to bewell aware of)—is to act as if they had only one will. The wayfor them to do this is to ‘join’ all their wills ‘together’. Themost obvious way to do this would be to join them naturally;but as wills won’t splice and dovetail like deal boards, theonly feasible way to do it is to join them politically; and theonly way for men to do this is for them all to consent tosubmit their wills to the will of one. This one will is thewill of the persons who exercise the supreme power; andwhen there happens to be many of them, their wills mustalready have been reduced to one, though our author hassaid nothing about the process by which this is done. So farour author’s argument. The above is the substance of it fairlygiven; not altogether with as much ornament as he has givenit, but I hope with somewhat more precision. The whole thingconcludes with our author’s favourite identical proposition[see section 5 above] or something like it, now repeated for thetwentieth time.

11. Taking it altogether, it is certainly a very ingeniousargument: nor can anything in the world answer the pur-pose better, except just in the case where it happens to bewanted.1 A veteran antagonist, trained in the discipline oflegal fencing, might with due management contrive to give

1 [Perhaps meaning ‘except in the case where there would be something for it to do, if it were any good’.]

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our author a victory. But if some undisciplined blundererwith no knowledge of the niceties of fencing were to attack, Isuspect that he would get within our author’s guard:

I ‘intend’? I ‘consent’? I ‘submit’ myself? ‘Who are you,I wonder, to know what I do better than I do myself?As for ‘submitting my will’ to the wills of the peoplewho made this law you are speaking of, I know thatI never intended any such thing. I abominate thosepeople, I tell you, and all they ever did; and I havealways said so. As for my ‘consent’, so far have I beenfrom giving it to their law that from the first to the lastI have protested against it with all my might.

So much for our refractory disputant. I know what I wouldsay to him; but what our author could find to answer to himis more than I can imagine.

12. Let us now go back and pick up those other passages[mentioned in section 2 above] that I supposed to be part of thesame plan that seems to be in view in the paragraph Ihave been discussing. First comes the short introductoryparagraph that ushers in the whole digression [see Introduction,

section 5]. Though it was short, and imperfect [see Glossary]with respect to the purpose of giving a general view of thecontents of the paragraphs that follow it, it was intended toexpatiate on this subject. On this subject, indeed, he doesexpatiate with a force of argument and energy of expressionthat nothing can withstand. ‘This’, it begins, ‘will necessarilylead us into a short enquiry concerning the nature of societyand civil government. . . .’ That is all the intimation it givesof the contents of the paragraphs I have examined. On theone now before us it touches in terms that are energetic,but more energetic than precise. It continues: ’. . . and thenatural and inherent right that belongs to the sovereignty ofa state, wherever that sovereignty be lodged, of making andenforcing laws.’

13. This is not all. The most emphatic passage is stillto come. It is part of that short paragraph which we found[chapter 2, section 11] to contain such a variety of matter. Heis there speaking of the various forms of government nowin existence: ‘However they began, or by what right soeverthey subsist, there is and must be in all of them a supreme,irresistible, absolute, uncontrolled authority, in which thejura summi imperii, or the rights of sovereignty, reside.’

14. The vehemence, of this passage is remarkable. Heransacks the language; he piles up, one on another, fourof the most tremendous epithets he can find; and as ifthe English tongue did not provide sufficiently strong orimposing expressions, he tops the whole with a formidablepiece of Latinity. All this agitation makes it plain, I think,that he has very much at heart something that he a wants tobring out undisguised but perhaps b fears to do so. In severalplaces it bursts out involuntarily, as it were, before he is wellready for it. Eventually a certain b discretion gets the upperhand over a propensity and, as we have seen, allows it todribble away in a string of obscure sophisms. . . .

15. Even someone much braver than our author mighthave hesitated here. The task to be travelled through wasthe intricate one of adjusting the claims of those two jealousantagonists, liberty and government. A more invidious [see

Glossary] battleground is scarcely to be found anywhere withinthe field of politics. Enemies encompass the traveller on everyside. He can hardly move without being assaulted with thewar-whoop of political heresy! from one direction or another.Difficult enough is the situation of someone who in thisdifficult terrain feels himself impelled one way by b fear andanother by a affection.

16. Let us return to the paragraph which it was themore immediate business of this chapter to examine. If ourauthor were not so given to •obscurity, one might imagine

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that he had gone in for •it on this particular occasion as away of extricating himself from this dilemma. A discoursethus prudently indeterminate might say enough to •keep infavour with the rulers of the earth without •taking a standagainst the prejudices of the people. Viewed by differentpersons, it might present different aspects:

•To men in power it might recommend itself, right fromthe start, as a practical lesson of obedience for the use of thepeople.

•Among the people themselves it might pass muster, for awhile at least, as a string of abstract scientific propositionsof jurisprudence.

Its true use and efficacy would be brought to light onlywhen there was an occasion for applying it, an occasion—nomatter what—when the people begin to murmur and to jointogether in measures of resistance. Now is the time for thelatent virtues of this passage to be called forth. The book is tobe opened to them, and in this passage they are to be showna set of arguments elaborately strung together and wrappedup, in proof of the universal necessity of submission—anecessity that is to arise not out of the reflection that theprobable mischiefs [see Glossary] of resistance are greater thanthe probable mischiefs of obedience, not out of any such de-batable consideration; but out of something that is ·intended·to be much more cogent and effectual, namely a certainmetaphysico-legal impotence, which is to •beget in themthe sentiment ·of obedience·, and •serve all the purposesof a natural impotence. Armed and full of indignation, ourmalcontents are making their way to the royal palace. In vain.A certain estoppel1 being made to bolt out on them by theforce of our author’s legal engineering, their arms are to fallas though by enchantment from their hands. They are told

that it is now too late to disagree, to clamour, to oppose—inshort, to take back their wills again. Their wills have beenlegally combined with the rest: they have ‘united’, they have‘consented’, they have ‘submitted’. Our author having thusput his hook into their nose, they are to go back as theycame, and all is peace. An ingenious enough contrivance!But popular passion is not to be fooled so easily, I suspect.It’s true that now and then one error may be driven out, for atime, by an opposite error; one piece of nonsense by anotherpiece of nonsense; but for barring the door effectively and forever against all error and all nonsense, there is nothing likethe simple truth.

17. After our author has taken all this trouble to inculcateunreserved submission, would anyone have expected to seehim among the most eager to arouse men to disobedience?and that perhaps on the most frivolous pretences? indeed onany pretence whatever? Yet that is what we shall find him tobe if we look back a little. The most enlightened advocatesfor liberty are content with leaving it to subjects to resist, fortheir own sakes, on the basis of permission, but this will notcontent our author, who insists on forcing disobedience onthem as a point of duty.

18. [In this section, ‘allowed’ replaces Bentham’s ‘suffered’, which

used to have that meaning.] In a passage before the digressionwe are examining but in the same section, speaking of thepretended law of nature and of the law of revelation, ourauthor says ‘no human laws should be allowed to contradictthese’. The expression is remarkable. It is not that no humanlaws should contradict them, but that no human laws shouldbe allowed to contradict them. He then proceeds to give usan example. One might expect an example that would havethe effect of softening the dangerous tendency [see Glossary] of

1 [[estoppel = ‘The principle which precludes a person from asserting something contrary to what is implied by his or her previous action or statement’(OED)]

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the rule, but he gives one that is certain to enhance it;1 andin the application of it to the rule, the substance of the latteris again repeated in still more explicit and energetic terms.Speaking of the act he instances, he says ‘Nay, if any humanlaw should allow or command us to commit it, we are boundto transgress that human law, or else we must offend boththe natural ·law· and the divine.’

19. The propriety of this dangerous maxim so far as thedivine law is concerned is something I must refer to a futureoccasion for more particular consideration. As for the law ofnature,

•if (as I trust it will appear) it is nothing but a phrase,•if the only way to prove any act to be an offence against

it is to show the harmful tendency of that act;•if there is no way to prove a law of the state to be contrary

to it except to show the inexpediency of that law, unlesssomeone’s bare unfounded disapproval of it is called a ‘proof’;

•if neither our author nor anyone else has even pretendedto give a test for distinguishing laws that would be contraryto the law of nature from ones that are merely inexpedient;

•if, in short, there is hardly any law that those whodisliked it have not found to be somehow in conflict withsome supposed law of nature.2

I see no upshot but that the natural tendency of such adoctrine is to impel a man, by the force of conscience, to riseup in arms against any law that he happens not to like. Imust leave to our author to tell us what sort of governmentcan be consistent with such a disposition.

20. The only clue to guide a man through these straits isthe principle of utility, accurately apprehended and steadilyapplied. It is the only thing that can—if anything can—yielda decision that neither party will dare in theory to disavow.To reconcile men even in theory is something; it brings themnearer to an effective union than when they are at odds inrespect of theory as well of practice.

21. In speaking in chapter 1 of the supposed contractbetween king and people, I have already had occasion to givewhat seems to me to be the only general description that canbe given of the juncture [see Glossary] at which resistance togovernment becomes commendable, i.e. reconcilable to justnotions •of legal or at least of moral duty and—if there is anydifference—•of religious duty. [See chapter 5, section 7.] I saidthis with reference to the particular branch of governmentthat was then in question, the branch that in this country isadministered by the King. But if it was sound in applicationto that branch of government and in this country, thereason for that would also make it sound for the wholeof government in any country. For each individual man,then, the juncture for resistance is the moment when

according to the best calculation he can make, theprobable mischiefs of resistance (speaking with re-spect to the community in general) appear less to himthan the probable mischiefs of submission.

That is the moment when it first becomes a allowable tohim, if not b incumbent on him—on the score of b duty as ofa interest—to enter into measures of resistance.

1 It is that of murder. In this word there lurks a fallacy that makes the proposition the more dangerous as well as more plausible. It is too importantto be entirely passed over, but in this place a slight hint is all I can give. Murder is killing under certain circumstances. Is the human law then to beallowed to define what those circumstances are? •If yes, the case of a ‘human law allowing or enjoining us to commit it’ is a case that is not so muchas supposable ·because no law could conceivably list all the circumstances in question·. •If no, adieu to all human laws: we can burn all that wehave been accustomed to calling our ‘law books’; the only law books we can be safe in trusting to are Pufendorf and the Bible.

2 [The original has ‘some text of scripture’, but this must be a slip.

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22. A natural question here is: by what sign—whatcommon signal equally conspicuous and perceptible toeveryone—shall this juncture be known? A question that itis easy enough to ask; and I hope it will be almost as easilyseen to be impossible to answer. Common sign for such apurpose? I know of none; anyone who can show us one mustbe more than a prophet, I think! A particular sign for eachparticular person? I have already given one: his own internalconviction of a balance of utility on the side of resistance.

23. Unless such a ·common· sign can be shown (which Ithink it cannot), the field of the supreme governor’s authority,though not infinite, must unavoidably be allowed to beindefinite.1 I can’t see any narrower limits to it under thisconstitution—or under any even freer constitution, if thereis one—than under the most despotic constitution. Beforethe arrival of the juncture I have been describing, resistancewould come too soon, even in a country like this one; whenthe juncture has arrived, the time for resistance has come,even under a government that everyone would call despotic.

24. Then what is the difference between a governmentthat is a free and one that is b despotic? Is it that the personswho have supreme power have less power in a one than inb the other, when it is from custom that they derive it? Byno means. The difference has nothing to do with what limitsthere are to power in the two kinds of state; it depends onfacts of a very different kind:

•on how the whole mass of power that constitutes thesupreme power is, in a free state, distributed among thevarious ranks of persons who share in it;

•on the source from which their titles to it are successivelyderived;

•on the frequent and easy changes of condition betweengovernors and governed, whereby the interests of the oneclass are more or less indistinguishably blended with thoseof the other;

•on the responsibility of the governors, i.e. a subject’sright to have the reasons for every act of power that is exertedover him publicly assigned and canvassed;

•on the liberty of the press, i.e. the security with whichevery man, whether governor or governed, may make knownhis complaints and remonstrances to the whole community;

•on the liberty of public association, i.e. the security withwhich malcontents may communicate their sentiments, co-ordinate their plans, and practise every mode of oppositionshort of actual revolt, before the executive power can belegally justified in disturbing them.

25. It may be true—especially because of this last point—that in a state of this kind the road to a revolution (if oneis necessary) seems to be shorter, and is certainly smootherand easier ·than in a despotic state·. There is certainly morelikelihood its being a revolution that is the work of a number,and in which, therefore, the interests of a number will beconsulted. Grant then that for these reasons the juncturemay arrive sooner and on less provocation under what iscalled a a free government than under what is called an b

absolute one; but even with this granted, until the juncturehas arrived, resistance is as much too soon under a one ofthem as under b the other.

26. Let us then steadily but calmly admit what our authorhazards with anxiety and agitation, namely that the authorityof the supreme body cannot, except where limited by expressconvention, be said to have any definite or certain limits. •To

1 Unless it is limited by express convention; for example where one state has, upon terms, submitted itself to the government of another; or where thegoverning bodies of a number of states agree to take directions in certain specified cases from some body that is distinct from all of them, consistingof members, for instance, appointed out of each.

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say there is any act they cannot do, •to speak of anythingof theirs as being illegal or as being void, •to speak of theirexceeding their authority, their power, their right (whateverthe phrase is)—all this, however common, is an abuse oflanguage.

27. The legislature cannot make a law to this effect?Why cannot? What would hinder them? Many other lawsare murmured at as inexpedient yet submitted to withoutany question of the right; so why pick on this one? Withmen whose affections are already enlisted against the law inquestion, anything will go down—any rubbish is good thatwill add fuel to the flame. But for an impartial bystander,it is plain that he cannot get the smallest satisfaction fromanything along the lines of denying the right of the legislature,their authority, their power, or whatever be the word.

28. Grant that there are certain bounds to the authorityof the legislature; does this get us any further? What is theuse of saying this when nobody has ever tried to mark outthese bounds to any useful purpose, i.e. in such a way thatit might be known beforehand what a law must be like not totransgress them? ‘There are things that the legislature can-not do; there are laws that exceed the power of the legislatureto establish.’ What rule does this way of talking provide uswith for determining whether any given law is one of them?As far as I can discover, none. Either •the talk goes on inthe confusion it began in, consisting in vague assertionsand supported by no intelligible argument, or •argumentsare drawn from the principle of utility—arguments which,whatever variety of words they are expressed in, eventuallyboil down to just this: that the tendency [see Glossary] of the·challenged· law is to a greater or a less degree pernicious. Ifthis is the result of the argument, why not come home to itat once? Why turn aside into a wilderness of sophistry whenthe path of plain reason is straight before us?

29. When people talk in this way, it is not altogether clearwhat practical conclusions they mean should be deduciblefrom it, and perhaps they don’t all mean the same. Some whospeak of a law L as being void (I’ll confine myself to this wordrather than travelling through the whole list) want to get usto regard L’s authors as having thereby forfeited their wholepower, not only of giving force to L but also to any other law.If they had arrived at the same practical conclusion throughthe principle of utility, they would have spoken of L as beingpernicious to such a degree that if the bulk of the communitysaw it in its true light, the probable mischief of resisting itwould be less than the probable mischief of submitting to it.These call for hostile opposition.

30. Those who say nothing about forfeiture are usuallyless violent in their views. If these folk grounded themselveson the principle of utility and used its language, they wouldstill have spoken of the law as being harmful, but withoutspeaking of it as being harmful to the degree that has beenjust mentioned. The mode of opposition they point to is onethat counts as a legal one.

31. Admit then that L is ‘void’ in their sense, and see whatfollows from this. The idea annexed to the word ‘void’ comesfrom the cases where we see it applied to a private instrument[i.e. legal document]. What follows from a private instrument’sbeing void is that all persons concerned are to act as if nosuch instrument had existed. So what follows from L’s beingvoid must be that people shall act as if there were no suchlaw as L, and therefore that if anyone were, on the strengthof L, to do something—something involving coercion againstanother person—that he would be punishable for doing ifit weren’t for L, then he would still be punishable by thejudicial power. Suppose for example that L imposes a tax:a man who set about collecting the tax by force would bepunishable as a trespasser; if he happened to be killed in

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the attempt, the person killing him would not be punishableas for murder; if he killed, he himself would perhaps bepunishable as for murder. Whose role would it be to bring itabout that such punishment was inflicted? The judges’ role.Applied to practice then, the effect of this language ·in whichsome laws are called ‘void’· is to confer on those magistratesa controlling power over the acts of the legislature.

32. A •particular purpose might happen to be served bythis management, and it might even be a good one. But Ican’t conceive of any benefit that would come to the body ofthe people from the •general tendency [see Glossary] of such adoctrine, and such a practice in conformity to it. Supposethat a parliament is too much under the influence of theCrown, paying too little regard to the sentiments and theinterests of the people. Still, the people had at least someshare in choosing the parliament, even if it was a smallershare than they ought to have had. Give to the judges apower of annulling its acts, and you transfer a portion of thesupreme power from •an assembly which the people had atleast some share in choosing to •a set of men in the choiceof whom they have not the least imaginable share; to a setof men appointed solely by the Crown, appointed—solely,avowedly and constantly—by the very magistrate whosepartial and occasional influence is the very grievance theyseek to remedy.1

33. In the heat of debate, some might say that thismanagement was transferring the whole supreme authorityfrom the legislative power to the judicial. But this would begoing too far on the other side. There is a wide differencebetween a positive and a negative part in legislation. Thereis also a wide difference between a negative with reasonsgiven and a negative without any. The power of repealing

a law, even for reasons given. is a great power—too greatindeed for judges—but it is still much inferior to the powerof making one. [Bentham has here a footnote saying: ‘Butthere is no denying that sometimes an appeal of this sortmay very well answer—and has indeed in general a tendencyto answer—somewhat the purposes of those who espouse (orprofess to espouse) the interests of the people. A public andauthorised debate on the propriety of the law is by this meansbrought on. The artillery of the tongue is played off againstthe law, under cover of the law itself, so that sentimentsunfavourable to the law are impressed on a numerous andattentive audience. As to any other effects of such an appeal,let us believe that in the instances where we have seen itmade, the attempt has been encouraged by the certainty offailure.’]

34. Let us now go back a little. In denying the existenceof any assignable bounds to the supreme power, I added[section 26 above] ‘except where limited by express convention’,because I had to bring in this exception. Our author, indeed,in that short passage in which he is the most explicit, leavesno room for it. Speaking of the various forms of government,he says ‘However they began, and by whatever right theysubsist, there is and must be in ALL of them an authoritythat is absolute.’ But

•to say this of all governments without exception;•to say that no assemblage of men can subsist in a state

of government without being subject to some one body whoseauthority is not limited even by convention;

•to say (in short) that not even by convention can anylimitation be made to the power of the body in a state whichin other respects is supreme,would be saying rather too much, I think. It would be saying

1 [He means ‘appointed by the Crown’, using ‘magistrate’ in a now-extinct sense in which it covers any high-ranking person with a role in the makingor administering of laws.]

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that there is no such thing as government in the Germanempire, or in the Dutch provinces, or in the Swiss cantons,or in the ancient Achaean league.

35. I don’t see what there is that need surprise us in thiskind of limitation ·of the supreme power·. How is any degreeof political power established? It is neither more nor less,as I have already had occasion to remark [chapter 1, section 12,

footnote], than a habit of and disposition to obedience—‘habit’speaking with respect to past acts, ‘disposition’ with respectto future ones. Unless I am much mistaken, this dispositionis easily conceived as being absent with regard to one sortof acts while present with regard to another. Thus, for abody that is in other respects supreme to be conceived asbeing limited with respect to a certain sort of acts, all thatis needed is for this sort of acts to have a description thatdistinguishes it from every other ·sort·.

36. When there is a convention, then, we are providedwith the common signal that we despaired of finding in othercases [see section 22 above].

The instrument of convention specifies a certain actwith respect to which the government is precludedfrom issuing a law to a certain effect, whether to theeffect of commanding the act, of permitting it, or offorbidding it. Despite this, a law is issued to thateffect.

If the sense of that law is clear, and the sense of the part ofthe convention that forbids it is also clear, the issuing of thelaw is a fact notorious and visible to all; so the issuing ofsuch a law is capable of being taken for the common signalI have been speaking of. It sets the limits to the authorityof the supreme body in question. What is the effect of sucha demarcation? At most, that the disposition to obedienceconfines itself within these limits; beyond them the subjectis not prepared to obey the governing body of his own state

any more than that of any other. I can’t see that it is anyharder to conceive a state of things in which the supremeauthority is thus limited than to conceive one where it is not.I find the two states equally conceivable; whether they areequally conducive to the happiness of the people is anotherquestion.

37. God forbid that anything I say here should leadanyone to infer that in any society a convention can be madethat sets an insuperable bar to something that the partiesconcerned think to be a reformation; God forbid that anydisease in the constitution of a state should be without itsremedy! Some might think that to be the case when thesupreme body that was one of the contracting parties hasincorporated itself with the other party and thus no longerexists to make changes in the engagement. But many waysmight be found to make the required alteration withoutdeparting from the spirit of the engagement. Although a thebody that contracted the engagement no longer exists, b alarger body from which a the first is understood to havederived its title may still exist. Let this b larger body beconsulted. Various ways might be conceived of doing this,without any disparagement to the dignity of the existinglegislature; I mean, of doing it in such a way that if thesense of the larger body is favourable to the alteration, itmay be made by a law which in this case ought not to be, andprobably would not be, regarded by the body of the peopleas a breach of the convention. [•He has here a long footnote

about how an alteration might be made in the Act of Union between

England and Scotland. •Throughout this section, ‘the convention’ and

‘the engagement’ refer to the same thing.]

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38. To return briefly to the language used by those whospeak of the supreme power as being limited in its ownnature:1 what I say here about the impropriety and evilinfluence of that kind of discourse is not intended to conveythe smallest censure on those who use it, as if they intendedto bring about the ill effects it has a tendency to produce. Itis a misfortune in the language rather than a fault of anyperson in particular. The origin of it is lost in the darknessof antiquity. We inherited it from our fathers, and despite allits inconveniences I suspect that we are likely to transmit itto our children.

39. I cannot look on this as a mere dispute of words. Icannot help thinking that the disputes between contendingparties—between the defenders of a law and the opposersof it—would stand a much better chance of being settled ifthey were explicitly and constantly referred to the principleof UTILITY. This principle rests every dispute on the footingof a matter of fact—future fact, the probability of certainoutcomes. If the debate were conducted under the auspicesof this principle, either •men would come to an agreementabout that probability, or •they would eventually see, afterdue discussion of the real grounds of the dispute, that noagreement was to be hoped for. ·In the latter case·, theywould at least see clearly the point the disagreement turnedon. The discontented party would then decide whether toresist or submit, on just grounds, according to

•what appeared to them to be worth their while,•how important the matter in dispute appeared to themto be,

•what appeared to them to be the probability or im-probability of success; in short,

•whether they thought that the mischiefs of submis-

sion would be less or greater than the mischiefs ofresistance.

But the door to reconciliation would be much more openwhen they saw that the ground of quarrel might be not amere affair of •passion but a difference of •judgment, andthat, for anything they could know to the contrary, a sincereone.

40. All else is merely womanish scolding and childishquarrelling, which is sure to annoy and can never persuade:

’The legislature cannot do this.’ ‘Yes it can!’‘Doing this exceeds the limits of its authority.’ ‘No itdoes not!’

It is obvious that a pair of disputants setting out in thismanner can go on annoying and perplexing one another forever, without the smallest chance of coming to an agreement.It is only a procedure of announcing—in an obscure butalso peremptory and captious manner—their opposite con-victions, or rather affections, on a question of which neitherof them sets himself to discuss the grounds. Through allthis, the question of utility is probably never even brought onthe carpet; and if it is, the language in which it is discussedis sure to be warped and clouded to make it match with theobscure and entangled pattern that we have seen.

41. On the other hand, if the debate had been initiallyand openly conducted on the footing of utility, the partiesmight eventually have come to an agreement, or at least to avisible and explicit issue:

‘The mischiefs of the measure in question are ofamount m.’ ‘Not so; they are less than that.;‘Its benefits are only of amount b.’ ‘Not so; they aregreater.’

We can see that this is a ground of controversy very different1 [It is not clear that this refers to. The phrase ‘limited in its own nature’ does not occur anywhere else in this work; nor does ‘natural limit’, which

occurs in Bentham’s marginal summary at this point.]

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A Fragment on Government Jeremy Bentham 5: Duty to Make laws

from the previous one. The question is now plainly a matterof conjecture about certain future contingent matters offact; to resolve it, both parties are naturally directed tosupport their respective opinions by the only evidence thenature of the case admits of—the evidence of past mattersof fact that seem to be analogous to those contingent futureones. These past facts are almost always numerous; sonumerous that a great proportion of them may well haveescaped the observation of •one of the parties until they werebrought into view for the purpose of this debate; and thismight be the whole reason why •that party has the beliefthat sets it at variance with the other. Here, then, we havea plain and open road, perhaps, to immediate agreement;at the worst to an intelligible and explicit issue—i.e. to aground of difference that may, when thoroughly troddenand explored, be found to lead on to agreement eventually.Once men clearly understand one another, it won’t be longbefore they agree. It is the perplexity of ambiguous andsophistical discourse that, while it distracts and eludes theunderstanding, stimulates and inflames the passions.

But it is now time to return to our author, from whosetext I have been gradually led astray by the delicacy andintricacy of the question it seemed to offer to our view. [He

started being ‘led astray’ in section 20, page 48.]

Chapter 5: Duty of the Supreme Power toMake laws

1. I now come to the last topic touched on in this digression:a certain ‘duty’ that our author lays on the supreme power,namely the duty of making laws. ·Here is his paragraph onthis.·

2. ‘Thus far, as to the right of the supreme power to make

laws; but further, it is its duty likewise. For since the respec-tive members are bound to conform themselves to the will ofthe state, it is expedient that they receive directions from thestate declaratory of that its will. But since it is impossible, inso great a multitude, to give injunctions to every particularman, relative to each particular action, therefore the stateestablishes general rules for the perpetual information anddirection of all persons, in all points, whether of positive ornegative duty. And this, in order that every man may knowwhat to look on as his own, what as another’s; what absoluteand what relative duties are required at his hands; what is tobe esteemed honest, dishonest, or neither; what degree everyman retains of his natural liberty; what he has given up asthe price of the benefits of society; and after what mannereach person is to moderate the use and exercise of thoserights which the state assigns him, in order to promote andsecure the public tranquillity.’

3. Still as obscure, still as ambiguous as ever! The‘supreme power’, according to the definition so recently givenof it by our author and so often spoken of, is neither morenor less than the power to make laws. We are now told thatthis power has a duty to make laws. From this we learnwhat? That it is its ‘duty’ to do what it does; i.e. to be whatit is. So this is what the paragraph now before us—withits apparatus of ‘fors’ and ‘buts’ and ‘sinces’—is designed toprove to us. The initial sentence seems to mean somethinglike this.

4. [This section seems to repeat the complaint of section 3,but with tangles that it doesn’t seem worthwhile unthread.]

5. The observation which (if I conjecture right) he reallymeant to make is one that seems very just indeed, and ofconsiderable importance, but very obscurely expressed andnot obviously connected with the purpose of what precedesit. The duty he means to be talking about here is, I take it, a

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duty not so much to make laws as to take proper measuresto spread abroad the knowledge of the laws that have beenmade: a duty which (to adopt some of our author’s ownwords) has to do not so much with issuing ‘directions’ aswith arranging for those that are issued to be ‘received’.

6. I must confess that I don’t much like speaking of theduties

•of a supreme power,•of a legislature (meaning a supreme legislature),•of a set of men acknowledged to be absolute.

Not that I would want the subordinate part of the communityto be a whit less watchful over their governors, or moredisposed to unlimited submission in their conduct, thanif I were to talk with ever so much peremptoriness of thegovernors’ ‘duties’ and of the ‘rights’ that their subordinateshave against them. What I am afraid of is running intosolecism and confusion in discourse.

·START OF A LONG FOOTNOTE·

This note is not addressed to anyone who is not accustomedto what are called metaphysical speculations, or who doesnot intend to engage in them himself, reckoning that thebenefit of understanding clearly what he is speaking of is notworth the labour.1. Something may be said to be my duty (understand ‘politicalduty’) to do if you (or some other person or persons) have aright to have me made to do it. I then have a DUTY towardsyou; you have a RIGHT as against me.2. What you have a right (understand ‘political right’) to haveme made to do is something that I am liable according tolaw, upon a requisition made on your behalf, to be punished

for not doing.3. I say punished because we can have no notion of rightor of duty without the notion of punishment (i.e. of painannexed to an act, coming for a certain reason and from acertain source).4. The idea belonging to the word ‘pain’ is a simple one. Todefine or more generally to expound a word is to resolve theidea belonging to it into simple ones, or to make progresstowards doing so.5. Unless I am much deceived, the only method for informa-tively expounding the words duty, right, power, title [meaning

‘entitlement’], and those other terms of the same sort thatare so abundant in ethics and jurisprudence, is the oneexemplified here. An exposition employing this method iswhat I call ‘paraphrasis’.6. A word W may be said to be expounded by paraphrasiswhen rather than translating it into other words, somewhole a sentence of which W forms a part is translated intob another sentence the words in which express ideas thatare simple, or are more immediately resolvable into simpleones, than those of a the former sentence. . . . This is the onlyway for abstract terms to be helpfully explained; i.e. in termsthat raise images of substances perceived, or of emotions.An idea is clear only if drawn from one of those two sources.7. The common method of defining—the method per genuset differentiam, as logicians call it—is no use at all in manycases. Among abstract terms we soon come to ones thathave no higher genus. A definition per genus et differentiam,when applied to these, obviously can make no advance: itmust either stop short, or turn back, as it were, upon itself,in a circulate or a repetend.1

1 [•per genus et differentiam is Latin for ‘by genus and differentia’. In defining ‘triangle’ as ‘plane closed figure with three straight sides’, we could seethe first three words as naming the genus and the next four as naming the differentia. •A ‘circulate’ is something that goes around in a closed loop.A ‘repetend’ here is a verbal analogue of a repeating decimal.]

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8. ‘Fortitude is a virtue.’ Very well, but what is a virtue? ‘Avirtue is a disposition.’ Good again, but what is a disposition?‘A disposition is a. . . .’—and there we stop. The fact is thata disposition has no higher genus; a disposition is nota. . . .anything! This is not the way to give us any notionof what ‘disposition’ means. Again: ‘A power is a right.’ Andwhat is a right? It is a power. Our author says somewherethat an estate is an interest; he might as well have saidthat an interest is an estate. It is equally impossible todefine in this way any a conjunction or b preposition, suchas b ‘through’ or a ‘because’:

A through is a. . . ...,A because is a. . . ...

Continue the definitions from there!

9. Some of our author’s most fundamental definitions arelike that, consequently leaving the reader where they foundhim. I may discuss this more fully and methodically on somefuture occasion. In the meantime I have thrown out theseloose hints for the consideration of the curious.

·END OF FOOTNOTE·

7. I think I understand pretty well what is meant by theword ‘duty’ (political duty) when applied to myself; but I don’tthink I could bring myself to apply it in the same sense, ina regular expository discourse, to people I am speaking ofas my supreme governors. It is my duty to do something if Iam liable to be punished, according to law, if I do not do it;this is the original, ordinary, and proper sense of the word‘duly’. Have these supreme governors any such duty? No;for if they are at all liable to punishment according to lawfor doing or not doing something, then they are not supremegovernors after all. Those by whose authority they are liableto be punished are the supreme governors.

·START OF A LONG FOOTNOTE·1. One may conceive three sorts of duties—political, moral,and religious—corresponding to the three sorts of sanctionsby which the duties are enforced; that is, the same conductmay be a man’s duty for any of these three reasons. To speakof the one of these and then (without warning to the reader)to start speaking of another, or not to let it be seen from thefirst which of them one is speaking of, is bound to produceconfusion.2. Political duty is created by punishment; or at least by thewill ·to punish· of persons who have punishment in theirhands, specified certain persons, political superiors.3. Religious duty is also created by punishment, by pun-ishment expected at the hands of one certain person, thesupreme being.4. Moral duty is created by a kind of motive which has hardlyyet acquired the name ‘punishment’ because of uncertaintyabout •the persons to apply it to and about •the species andgenera in which it will be applied. It comes from varioussufferings caused by the ill-will of members of the communityin general, a variable and uncertain group consisting of thosewho happen to be connected with the person whose duty isin question.5. When in any of these three senses a man asserts that a bitof conduct is a duty, he is asserting the actual or probableexistence of an external event, namely a punishment issuingfrom one of these sources in consequence of the conduct inquestion. This is an event extrinsic to the conduct of theparty spoken of, as well as to the speaker’s state of mind.If he persists in calling it a ‘duty’, without meaning this inany one of those senses, then he is only expressing his owninternal sentiment. All he means is that he feels pleased ordispleased at the thought of the conduct in question, butcannot tell why. If that is what he means, he should outright

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say so, rather than trying to give undue influence to hisindividual vote by expressing it in terms that purport todeclare the voice of God, or the law, or the people.6. I do not know which of these three senses of the word ourauthor had in mind when he said that it was the ‘duty’ ofsupreme governors to make laws. They cannot be subject topolitical duty; and to attribute to them a duty of the moralor religious kind to this effect seems rather a precipitateassertion. [Those last five words are Bentham’s.]

I suppose that what he really meant was merely that hewould be glad to see them do what he is speaking of, namely‘make laws’—that is (as he explains himself) spread abroadthe knowledge of them. Would he so? So indeed would I. Ifour author were asked why, I don’t know what answer hewould give; but I would have no difficulty answering thisquestion when put to me. I answer ·that I would be gladto see the governors make laws· because I am convincedthat it is for the benefit of the community that they shoulddo so. This would be enough to entitle me to say that theyought to do it. But I would not say that it was their duty in apolitical sense. Nor would I venture to say it was their ‘duty’in a a moral or b religious sense until I knew whether theythemselves b thought the measures were useful and feasible,and whether a they were generally supposed to think so.If I were convinced that b they themselves thought so, thenI might say that God knows that they do. God, we are tosuppose, will punish them if they fail to pursue this course;and it is then their religious duty. If I were convinced thata the people supposed the governors thought so, then Imight say that the people will also punish them for theirneglect by various manifestations of their ill-will; and thenit is their moral duty. In any of these senses there can beno more propriety in saying it is the duty of the supremepower to pursue the measure in question than to say it

is their duty to pursue any other proposed measure thatwould be equally beneficial to the community. To usher inthe proposal of a measure in this peremptory and confidentmanner may be pardonable in a loose rhetorical harangue,but it can never be justifiable in a composition that aims tobe exact and informative. There are many kinds of privatemoral conduct whose tendency [see Glossary] is so well knownand so generally acknowledged that the observance of themmay well be called a ‘duty’. But to apply the same word tothe particular details of legislative conduct, especially newlyproposed ones, is I think going too far, and tends only toconfusion.

·END OF FOOTNOTE·

8. The word ‘duty’, then, if applied to persons spokenof as supreme governors, is evidently applied to them in asense that is figurative and improper; and when it is used inthis sense, we can’t infer from any propositions using it thesame conclusions that might be drawn from them if it wereused in the other sense, which is its proper one.

9. I shall now use the word ‘duty’ in its improper sense:the proposition that it is the legislature’s duty to spreadamong the people as much as possible the knowledge of itswill is a proposition I am most unreservedly inclined to agreewith. If this is our author’s meaning, I join myself to himheart and voice.

10. What particular duties our author would have foundfor the legislature under this general heading of ‘duty’ is notvery apparent, though it would need to have been expressed moreprecisely than it is if his meaning was to be grasped to anypurpose. The difficulty of grasping it is made even greater bya practice that I have more than once already detected him in[chapter 2, section 11; chapter 3, section 7; chapter 4, section 19], akind of versatility that is utterly vexatious to a reader who makes

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a point of entering into the sentiments of his author. He sets outwith the word ‘duty’ in his mouth, and in the character of a censorbegins with all due gravity to talk to us about what a ought to be.In the course of this lecture our Proteus1 slips aside, takeson the role of a b historian, gives an insensible turn to thediscourse, and without any warning of the change finisheswith telling us b what is. Because of the spirit of obsequiousquietism that seems constitutional in him, our author hardlyever recognizes a difference between these two points—the isand the ought to be—opposite as they frequently are in theeyes of other men. In the second sentence of the paragraphhe observes that ‘it is expedient that they’ (the people) ‘receivedirections from the state’ (meaning the governing body)‘declaratory of that its will’. In the very next sentence welearn from him that what it is thus a ‘expedient’ that the stateshould do it b does do. ’But since it is impossible in so greata multitude, to give particular injunctions to every particularman relative to each particular action, therefore the stateestablishes general rules for the perpetual information anddirection of all persons in all points, whether of positive orof negative duty.’ He is saying that ‘the state’, meaning anystate at all, does actually establish such rules. Thus farour author; so that whatever he would wish to see doneis done, indeed is sure to be done, come what may. Sothat happily the duty he is here so insistently laying on hissuperiors will not burden them much! That is how far he isfrom having any determinate instructive meaning in the partof the paragraph in which apparently, and by accident, hecomes nearest to it.

11. The passage is not absolutely so remote from meaningthat the inventive complaisance of an admiring commentatorcouldn’t find it to be pregnant with a good deal of useful

matter. It at least glances at the •design of disseminatingknowledge of the laws, with a show of approval. If ourauthor’s writings were as sacred as they are mysterious, andif they were of the sort that stamp the seal of authority onwhatever doctrines can be fastened on them, then what wehave read might serve as a text from which a man couldwithout undue violence infer the obligation to adopt as manymeasures as he thought would further that •design. Inthis oracular passage I might find inculcated . . . .as manypoints of legislative duty as seemed to further the purposes ofdigestion and promulgation ·of existing law·. Thus fortified, Imight press on the legislature that it was their duty to carryout without delay many a busy project that had previouslynot been thought of or not heeded. I might call them with atone of authority to their work. I might bid them to provideimmediately

•for bringing to light such scattered materials as canbe found of past judicial decisions, individual andneglected materials of common law,

•for registering and publishing all future ones as theyarise,

•for transforming the body of the common law thuscompleted into statute-law, by a digest,

•for breaking down the whole ·body of law· into parcelsor codes, one for each distinguishable class of personsconcerned in it,

•for introducing to the notice and possession of everyperson his respective code;

these all being works that public necessity cries aloud for, atwhich professional interest shudders, and at which legisla-tive indolence2 stands aghast.

12. All these leading points of legislative management—1 [A god in Greek mythology who was said to avoid discovery by changing his shape; cf.‘versatility’ few lines earlier.]2 Added by Bentham in 1822: Had I seen in those days what everybody has seen since, instead of indolence I would have written corruption.

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with as many points of detail subservient to each as a carefulmeditation has suggested—I might enforce by our author’soracular authority. For the procedures listed above are allnecessary if every man is to be made to know, in the degreein which he ought to be made to know, what (in our author’swords)

’to look on as his own, what as another’s; what abso-lute and what relative duties are required at his hands;what is to be esteemed honest, dishonest, or neither;what degree every man retains of his natural liberty;what he has given up as the price of the benefitsof society; and after what manner each person is tomoderate the use and exercise of those rights whichthe state assigns him, in order to promote and securethe public tranquility.’

In taking my leave of our author, I finish gladly with thispleasing peroration. Perhaps a scrutinizing judgment wouldnot be altogether satisfied with it; but the ear is soothed byit and the heart is warmed.

13. I now put an end to the tedious and intricate warof words that has gone on especially during these two lastchapters: a war that is perhaps wearisome enough andinsipid to the reader, but beyond description laborious andirksome to the writer. What remedy? If there had been sense,I would have attached myself to the sense; finding nothingbut words, I had to attach myself to them or to nothing. Ifthe doctrine had been merely false, the task of exposing itwould have been comparatively easy; but it was worse thanfalse—meaningless. That is why it required all the trouble Ihave been here taking with it; to what profit let the readerjudge.

‘Well then’, cries an objector, ’the task you have set

yourself is at an end; and the subject of it after all, accordingto your own representation, teaches nothing; according toyour own showing it is not worth attending to. Why thengive it so much attention?’ I do it

•to do something to instruct, but more to undeceive,the timid and admiring student,

•to arouse him to place more confidence in his ownstrength, and less in the infallibility of great names,

•to help him to free his judgment from the shackles ofauthority,

•to let him see that a reader’s not understanding adiscourse may be the writer’s fault rather than hisown,

•to teach him to distinguish showy language fromsound sense,

•to warn him not to pay himself with words,•to show him that what tickles the ear or dazzles theimagination will not always inform the judgment,

•to show him what our author can do and has done,and what he has not done and cannot do,

•to get him to prefer fasting on ignorance to feedinghimself with error, and

•to let him see that considered as an expositor of thelaw our author is not he that should come, and thatwe are still looking for another.

‘Who then’, says my objector, ‘will be that other? Yourself?’No indeed! My mission is at an end when I have preparedthe way before him.1

1 [The last few lines echo the gospel according to Matthew: •‘Art thou he that should come, or do we look for another?’ •‘Behold I send my messengerbefore thy face, which shall prepare thy way before thee.’]

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A Fragment on Government Jeremy Bentham Appendix: Preface written 46 years later

Appendix: Preface written 46 years later

[Written for the second edition (1822), but not published with it]

[I] [Bentham says that he plans in this Preface to presentdetailed facts that will support the general view that has beena theme in most of his work over the intervening decades,namely:] that no system of government ever had or ever couldhave had for its principal goal the good of anyone other thanthe very individuals by whom on each occasion its powerswere exercised; that in particular this has been the casewith the least bad of all bad governments, the English—thegovernment of the Anglo-American United States being thefirst of all governments to which the epithet ‘good’, in thepositive sense of the word, could properly attached. [He addsthat in England the main offenders have been highly placedjudges who have ‘usurped’ legislative power, pretending thatit is only judicial power. He names two previous writers whohave shown themselves to have views like his; but remarksthat they were not as open and direct as he has always been,and indicates that his ‘narration’ is more credible than theirs,because their relevant work was written for publication postmortem, when the author is ‘out of the way of all personalresponsibility in respect of it’.]

[II] When the Fragment made its appearance, the sensationit produced was for some time not inconsiderable. It consti-tuted the first considerable exception. . . .to the unqualifiedadmiration that the Commentaries had for so many yearsrecevied, that had ever been seen in print. [Because itwas published anonymously, there were conjectures aboutwho the author was. Bentham names three people whomsome thought to have written the Fragment. One was John

Dunning, later Lord Ashburton, whose clear, incisive mannerof thought and speech Bentham admires, and thinks he mayhave learned from. But:] Whatever likeness in respect ofcertain faculties there may have been between the illustri-ous advocate [Dunning] and the obscure reformist [Bentham],nothing could be much more opposite then their feelingsand wishes with relation to the universal interest [that is, with

relation to the welfare of the populace as a whole].The two other conjectures ·about the authorship of

the Fragment· were still more completely groundless: and,though coming from professional men, as utterly improb-able as conjectures can easily be. I speak of the intrinsicevidence provided by the work, compared with the highpolitical situation and professionally known characters ofthese reputed authors of it. [One of the two was LordMansfield, whom Bentham does not discuss here, though hedoes later. The other was Lord Camden, a high court judgeand then Lord Chancellor, whose improbability as author ofthe Fragment Bentham points out in a passage that includessome ironical self-mockery:] On the hill of forensic ambition,Lord Camden’s place had for years been on the summit; theauthor’s was at the bottom. Lord Camden, in his situation,could not conceivably have had any inducement to take upand keep up the tone of juvenility and novice-ship that willbe seen pervading the work and painting in genuine coloursthe author’s mind.

For improvements in the state of the law, the author hadlong been under the stimulus of the appetite that age—thegreat moderator of most appetites—had left undamped. ToLord Camden, all improvement in that line was an object ofundisguised aversion. [He offers ‘the following little history’as evidence for that:]

Some time after the appearance of the Fragment, theHouse of Commons was found to contain a small knot of

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young men who had begun to show themselves disposedto contribute to the improvement of the law. William Eden,who afterwards entered into a diplomatic career and wasraised to the peerage with the title Lord Auckland, was oneof them, probably at the head of them (I have no recollectionabout the others). The first fruit of their labours was theproduction of a bill that aimed to clear the Statute Book ofa few insignificant samples of its antique rubbish. [He saysthat they were incapable of doing any good, but didn’t domuch harm. One of the laws they tried to abolish was a 13thcentury law forbidding the importation of ‘certain pieces ofcoined metal called pollards’.] The danger of an excess ofthat article could not be very menacing at the time of MrEden’s bill! In the Commons it was allowed to pass: but inthe House of Lords it found armed against it an altogetherirresistible authority.

It was Lord Camden’s. From such authority, in a placewhere authority is everything, very few words were sufficient.[Bentham read them in a newspaper, no longer remembersthem, but is satisfied that they belonged in a book calledFallacies. He says that not even the ‘most determinedanti-reformists’ of the time at which he is writing woulddescribe as ‘intemperate’ or ‘immoderate’ the ‘reform, if suchit may be called’, proposed by Mr Eden’s bill. He continues:]Seeing it thus dealt with, I was chagrined to the degree thatmay be imagined: chagrined, and at the same time evenastounded; for at that time I had not yet had any suspicionof there being anything wrong with the liberalism of thatleader of the whig lawyers.

[III] Among the effects of the work, such as it was, wasa sort of concussion in the world it belonged to—in theworld of politics but more particularly in the world of law.

More particularly still in the higher regions, the inhabitantsof which—in this as in other professions—form a sort ofcelestial conclave, of the secrets of which can be observedfrom the neighbouring low grounds only through a mediumimpregnated with awe, admiration, and conjecture.

The peep given here into the mysteries may be foundneither uninteresting nor uninstructive: it may further thegrand purposes that the work itself has for its object—purposes that may be seen containing the germ of everythingthat has since been sowed on the same field by the samehand. A more particular object is—throwing light into theden of the long-robed Cacus.1 Cacus felt the light, andtrembled.

The more extensive purpose—indeed the all-comprehensive purpose—is to call attention to the imperfec-tions which even at that time of day were seen swarming in•the frame of the government, and to the ricketiness of theonly theoretical foundations that had ever been brought tosupport •it. All such imperfections brought profit, in someshape or other, to those among whom the power was shared;so their interest was of course that those same imperfectionsshould. . . .remain for ever unimproved, and therefore be atall times as little in view as possible.

As a basis for all operations directed to furthering thispurpose, the Fragment at the same time. . . .undertook to setup, and so can be seen as actually setting up, the greatesthappiness of the greatest number as the proper end of gov-ernment, the only proper and defensible end of it; as theonly standard by which any apt judgment could be formedregarding the propriety of any measure, or regarding theconduct of any person opposing or supporting it. At that timeof day, the author of the Fragment did not see any of those

1 [A fire-breathing murderous giant in Roman mythology, killed by Hercules.]

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imperfections in the general frame of the government asarising from anything worse than inattention and prejudice.He did not see then, what the experience and observationsof nearly fifty years have since taught him to see in them soplainly, the elaborately organised and anxiously cherishedand guarded products of sinister [see Glossary] interest andartifice.

Under the name of the principle of utility (for that wasthe name adapted from David Hume) the Fragment set up,as I have said, the greatest happiness principle in the roleof the standard of right and wrong in the field of moralityin general, and of government in particular. In the field ofgovernment it found that in this country the original contractwas playing that role.

The existence of that pretended agreement (need it now besaid?) was and is a fable: the authors of the fable, the whiglawyers. The invention, such as it was, had been made bythem for their own purposes, and nothing could have beenbetter contrived: once the existence of the contract had beenadmitted, the terms remained to be settled; and these wouldof course be, on each occasion, what the interest of ·thewhig lawyers on· the occasion required that they should be.The Fragment saw this offspring of falsehood and sinisterinterest as the phantom that provided the first declaredsupport for the revolution that replaced Stuarts by Guelphsand added corruption to force. The Fragment will be seenmaking declared war against this phantom—the only war butone that had ever been made against it on any side, and theonly war without exception that had ever been made againstit on the side and in favour of the people. Against this attackthus made, no defence has (I believe) ever been attempted:since that time the chimæra has hardly been seen to show

itself, at any rate under its own name ·‘original contract’·.Such as it was, it was the offspring of fiction, meaning thatword in the sense it has in law-language.

A fiction of law may be defined as: a wilful falsehoodaimed at stealing legislative power by and for people whocould not or dared not openly claim it, and who could notexercise it if it weren’t for the delusion thus produced.

Thus it was that, by means of mendacity, usurpation wason each occasion set up, exercised, and established.

A partnership was thus formed (insofar as there can be apartnership between a master and his always-removable ser-vants. Its goal was to extract, on joint account and for jointbenefit, from the pockets of the people the largest possibleamount of the produce of the people’s work. Monarch foundforce, lawyers fraud; thus was the capital formed. . . . Therepresentatives of the people, now such convenient partners,were not as yet ripe for admittance ·back then·. There wereonly two partners in the concern—monarch and lawyers.Whatever was the fraud thus practised, partners on bothsides found their account in it, with the interests of bothsides provided for as a matter of course.

The monarch, not being acknowledged in •the capacityof sole legislator, had everything to gain by allowing thesealways-removable creatures of his thus to exercise the powerbelonging to •that office; because with the instrument thusconstructed and always at hand—an instrument whichcontinually increasing experience showed to be so fit foruse—depredation and oppression could at all times be ex-ercised, in shapes and degrees in which he could not havedared to exercise them himself in a direct way, or to proposein an open way to the representatives of the people.

And the authors of this power-stealing system were just1 [He means ‘pretend not to notice’, using ‘connive’ in what was its only meaning until ignorance wrenched it into meaning something like ‘conspire’.]

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as sure to find their account in it; because their master, forthe sake of the profit received by him as I have described,could do no otherwise than connive at1 those other lies anddevices by which depredation and oppression were carriedout by them. Here again was another source of profit to thehead partner: for his power of patronage meant that witheach vacancy the office with the annexed plunderage becamehis, his not to retain indeed, but at any rate his to give.

Mendacity is a name too soft for falsehood applied to suchpurposes and by men so situated; for the greatest sufferingever produced by anything to which ‘mendacity’ is appliedin the relations between individual and individual would befound inconsiderable in comparison with the suffering I havebeen talking about. There is an obvious and simple way ofplacing the nature and effects of it in their full and true light.Run over the field of law as laid down in any of the books;pick out the various parts in which a fiction of any kindhas been employed. The most extensively and mischievouslyoperative will be found in Blackstone; others will be found inthe books of judicial procedure called books of practice. Setdown the various fictions under the headings they belong to;in each instance, look for

•the particular mischief to the public, and•the particular profit to the judge or judges of thejudicatory (called the court, so as to let the servantsin for a share of the worship paid to the master).

If they are honestly looked for, in no case would there bemuch difficulty in finding them; and the purpose of havingeach fabrication—·each fiction·—would be seen to be theprofit to be made out of it.

There is at least one eminently serviceable and all-comprehensive effect to which every one of them would befound contributory. That is the general debility [= weakness]thus produced in the understanding of the deluded people,

·which serves the purposes of the fiction-mongers· becausethe more prostrate that debility, the more flagrant the degreeof depredation and oppression to which the people mightbe brought to submit. Men have been in this way madeto regard falsehood as not only serviceable to justice butnecessary to it; and there can be no better measure of theirdegree of debility than that.

These appointed guardians of virtue didn’t just punishthis vice—·lying·—in others but also painted it in its propercolours. That which is vice in all others, how could itbe virtue in them? ·They would have to reply· that tothem belonged the power of making right and wrong changenatures, and determining what shall be morality as well aswhat shall be law; thus making each of them depend not onits effects on the happiness of the community at large, but onthe ever-changeable good pleasure of the possessors of power,however obtained and however exercised. Thus in regard tomorality; and in regard to truth, the power of determining ifnot what shall be true what shall for all practical purposes betaken to be true. To produce ductility, produce debility! Norecipe was ever more effectual; no time at which the virtue[here = ‘power’] of it has been more thoroughly understood thanat present. If it weren’t for this, how could judges have beenallowed to make law, or priests gospel, as they have beenand still are?

Though in the Fragment the mask was not taken off ascompletely or forcibly as it is here, still the effects producedby any such disclosure may without much difficulty beimagined. Nowhere, till this little work appeared, had therebeen a heart to declare, or even perhaps an eye clearly to see,that in the hands of these arbiters of every man’s destinythis pretended product of matchless wisdom—this objectof veneration to the deluded multitude—had never beenanything better than a cover for rascality. By no previous

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hand had the gauntlet been thrown down in the face ofthe brotherhood; that gauntlet which, though so repeatedlyoffered to learned vizards, no-one has yet seen the possibilityof taking up.1

[IV] It is not hard to imagine the effects produced on sinisterinterest—on sinister interest in these high places—by thewounds thus given to it.

The next sentence: But the greatest happiness of the greatestnumber requires, that they should be not only imagined butproved: and this they shall now be, in so far as naturalprobability, aided by whatever support it may be thought toreceive from the character of the narrator, can gain credence,for the indications given of a set of actings and workings,of which, for the most part, the mind, in its most secretrecesses, was the theatre.

What it means, spelled out a bit: But imagining those effectsis not the same as providing evidence for what they were;and the latter ought to be done. (Why ought it to be done?Well, you know my standard for that: it is required for thegreatest happiness of the greatest number !) I shall now do it.But I’ll be making claims about what went on in the hiddenrecesses of the minds of the people in question; to get you tobelieve these claims, I’ll have to rely on •natural probabilitytogether with •what you know of my character.

The reader will see these effects in the conduct of the variouspersonages—keepers and workers of the state engines—inrelation to the present work and another by the same

hand.2. . . .He will see the great lawyers of the age—those of the one

·political· party as well as those of the other—concurring(and he will learn to judge whether it was not by concert3) ina system of deportment and discourse having for its effect(and he will judge whether it had not also for its goal) keepingcovered up in the napkin the talents (such as they were) bywhich the unwelcome performance had been produced. Hewill see the hand of a great statesman employing itself atlength in the attempt to draw them out of the napkin andput them to use.

If it were not for the great purposes that have beenseen, the patience of the public would never have beentried by any such string of personal anecdotes in whichan insignificant individual [he means himself] is inevitably themost prominent figure. In themselves the facts are much tootrivial to justify time it has taken to bring them to view—atime that cannot be thought of without remorse, given thedelay it has caused in the carrying out of other engagements.One consolation is the fact (which is what tempted me intothis) that those engagements required the establishment ofthe all-comprehensive theory that will be confirmed by theparticular experience embodied in these anecdotes.4

The three fundamental principles of the constitutionalbranch of the all-comprehensive code now forming1. End-indicating principle, the greatest happiness principle.2. Obstacle-indicating principle, the universal self-preference-announcing principle.

1 [This refers to the medieval practice of throwing down a glove as a challenge to a duel. A ‘vizard’ was a mask worn to protect the face.]2 [This refers to Bentham’s Introduction to the Principles of Morals and Legislation, published in 1789, exactly half-way between the first edition of the

Fragment and the writing of this preface. A version of this work can be found on the website from which the present text came. ]3 [The difference between a ‘concurring’ and b ‘by concert’ is the difference between a working towards the same upshot and b doing this by collaborating with one

another.4 [Up to here Bentham has used ‘engagement’ only in a sense that roughly equates it with ‘contract’ or ‘agreement’, but that can’t be what is in play

here. Perhaps here he is punningly using ‘engagements’ to refer both to commitments (e.g. to write certain things for publication) and also to battles.]

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3. Means-indicating principle, the interest-junction-prescribing principle.Anyone who is familiar with the House of Commons’ votesor even the newspaper reports of them will find these labels,brief as they are, intelligible and justifiable.

Of all the great men who will pass under review, we’llsee just one who seems to have no aversion to the greatesthappiness principle or to how the author of the Fragmentproclaimed and applied it. The cause of the aversion ·of theothers· will be seen to lie in the nature of the species, ofthe class, and of the situation of the class on the one part,and in the nature of individuals on either part. The conductof any other individuals in that same situation would havebeen basically the same: the individuals in question being ofboth ·political· parties; men who are as good (in every sense)as any that are ever likely to be in those same situations aslong as the form of government is what it is.

Sinister [see Glossary] interests, two in the same breast:lawyer’s interest and ruling statesman’s interest. •Lawyer’sinterest: hostile to the interests of all those who are suitorsor may need to become so, i.e. of all who are not lawyers.•Ruling statesman’s interest: hostile to all subjects’ interests,in a form of government which adds—to the inclination thateveryone has—in the ruling hands adequate power: enoughpower to complete the system of depredation and oppression;power by means of the corruption and delusion that are theessence of this form of government, in addition to that phys-ical force and those means of intimidation and remunerationthat inevitably belong to every form of government.

Of the three confederated interests, that of the lawyertribe is especially mischievous, because •they add to theirshare of the common sinister interest another one thatis peculiar to themselves, and because •by the peculiarstrength given to their minds by exercise, they lead all the

other members of the confederacy; they are the men whoseexertions bring about whatever is most difficult of the thingsthat are wished to be done.

And thus will be seen an instance of the obstacle-indicating principle—the universal-self-preference-indicatingprinciple.

So long as the form of government continues to be whatit is, not better and better but continually worse and worse,the condition of the people must also become worse andworse until ·it can’t become any worse because· the sinistersacrifice of the interest of the many to the interest of theone or the few has been finally completed. In the presentstate of Austrian Italy, English Ionia, Ireland can be seeneven now that which England is hastening to be. If forms·of government· continue to be what they are, Englishmencannot too soon prepare themselves for being shot, sabred,hanged, or transported, at the pleasure of the creatures ofa monarch who is free from all checks but the useless oneof an aristocracy that shares with him the same sinisterinterest. (·They are his ‘creatures’ because· he put themin their places and can take them out whenever he likes.)Precedents have already been established; and whoevermade them—whether those who say they are making lawor those who while making law deny that they are doingso—everything for which a precedent has been made is seenas justified. The various particular interests of the aristocratin all his shapes

including the fee-fed lawyer and the tax-fed or rent-fedpriest, all prostrate at the foot of the throne

constitute the everlastingly and unchangeably ruling interest.Opposite to the interest of the greatest number—oppositethrough the whole field of government—is that same rulinginterest. What it requires is that the ruling few should at alltimes have in their possession and at their disposal as much

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a power, b wealth, and c factitious dignity as possible.What the interest of the subject many requires is that the

quantity of a power and b wealth at the disposal of the rulingfew should at all times be as small as possible: of thesenecessary instruments, the smallest quantity; of that worsethan useless instrument c factitious dignity, not an atom—

no such instrument of corruption and delusion; nosuch favoured rival and all-purpose substitute formeritorious and really useful service; no such dis-proportionate form of remuneration, when for reallyuseful service the only remuneration would be suit-able recognition, which in the shape of honour can beproportionate.

Can opposition be more complete? But being governed bymen who are under the dominion of an interest opposite toone’s own—isn’t that being governed by one’s enemies?

•In or out of office, having power or expecting it,•Tories or Whigs, leaning most to the Monarchical sideor most to another side equally hostile to that of thepeople

—what does it matter which of these situations a man is in ifhe has the interest and the power of an enemy? So there willnever be any hope of relief unless and until the form of thegovernment becomes such that •the rulers in chief whoseparticular interests are opposite to the universal interest arereplaced by •others whose particular interests have beenbrought into coincidence with that same universal interest;in a word, till the interest-junction-prescribing principle, aspresented above, shall have been carried into effect. In theAnglo-American United States has not this problem beensolved?

Six public characters must now be brought upon thestage; Mr or Sir Alexander Wedderburn, Lord Mansfield, Earlof Shelburne, Lord Camden, Mr Dunning, Colonel Barré:

denominations which belonged to them at the time spokenof. [Each of the six had been dead for at least 17 years at the time when

this Preface was written.]

In the case of Lord Shelburne, it will be seen how ill-assorted the picture of the statesman is with those of thelawyers that preceded and follow it. But the interpolation isunavoidable; without it, the other personages could not havebeen brought to view.

[V] The first personage to be produced is Wedderburn; atthe time here spoken of, Solicitor General. [He lists Wedder-burn’s later distinctions.]

The Fragment had not been out long when a dictum thatit had drawn from him showed me all too plainly the alarmand displeasure it had aroused. The audacious work hadcome upon the carpet, in particular the principle of utilitythat it so warmly adocates; this principle and its supportingargument, in opposition to the Whig-lawyer fiction of theoriginal contract. ‘What say you to it?’ said somebody,looking at Wedderburn. Answer: ‘It is a dangerous one.’[He goes on at some length about the word ‘dangerous’ beingall that he had been told about Wedderburn’s response.]

Warm from the mouth of the oracle, the response wasbrought to me. What I saw all too clearly was the alarm anddispleasure that it was evidence of; what I did not see was thecorrect perception that it expressed—I mean the perceptionof the likely consequences of the principle in relation to theparticular interests of the particular class that this lawyer,already elevated, was on his way to being the head of.

[He goes on to say that until recently—-he is ‘ashamed’to think how recently—he was bewildered by the accusationthat the principle of utility is dangerous, and thought thatWedderburn must have been confused; until eventually herealised that he had been confused:] The man was a shrewd

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man, and knew well enough what he meant, though I didnot. By this time, I hope, most of my readers know what hemeant as well as he did. [They would express it, he says, insome such way as this:]

By utility, set up as the object of pursuit and standardof right and wrong in government, what this man[meaning Bentham] means to direct people’s eyes to iswhatever it is on each occasion that is most usefulto all the individuals taken together over whom gov-ernment is exercised. But what would be most usefulto them would in most cases be calamitous to us, bywhom the powers of government are exercised overthem. If this principle prevails, it is all over with us.It is in our interest for the mass of power, wealth, andfactitious dignity we enjoy at other people’s expense tobe as great as possible; it is in theirs for it be as smallas possible. Judge, then, whether it is not dangerousto us. And who should we think of but ourselves?

Thus far Wedderburn. What this one lawyer said, all thoseothers thought. And who knows how many hundred timesthey may not have said it? [He ends with an anecdote aboutabout an ‘icy’ meeting with Wedderburn on a social occasion.]

[VI] I come now to Lord Mansfield. [Bentham here givesan enormously long and detailed account of his relationswith Mansfield, who at one time was a patron of Bentham’s.The narrative of their relations involves about a dozen otherpeople. Mansfield a liked the Fragment, then b turned againstit. Mansfield had a significant quarrel with Blackstone, theauthor of the Commentaries, the chief target of the Fragment,and this is reflected in the sentence with which Benthamconcludes this vast narrative, talking about how Mansfieldwill have seen different parts of the Fragment:] In some wereseen the tormentor of his tormentor, hence a the delectation:

in others, a liberalism and a logic, threatening his despotismand his logic: hence b the aversion.

[VII] [Bentham reminisces about some visits he had with theEarl of Shelburne at his home, Bowood, and continues:] Oneman could not receive from another more unequivocal marksof esteem, and indeed of affection, than I received from LordShelburne in the course of about twelve years. Much of thatis irrelevant to the great public purpose in view, and I shallleave it out; but one thing will be found relevant to it: myattachment to the great cause of mankind received its firstencouragement, and its first development, in the affections Ifound in that heart, and the company I found in that house.

[He reports something that occurred more than 40 yearsearlier but is ‘as fresh in my mind, as if it had been butyesterday’. He has said that an interesting novel mightbe made out of a ‘correct and unvarnished picture’ of theincident in question, and his own account of it is curiouslydetailed. The core of it is Shelburne’s rather solemnly askingBentham ‘What is it you can do for me?’ and Bentham’sreplying ‘nothing, that I know of’. Then:] If by this rencontreany expectation of his was disappointed, neither his kindnessnor the marks of his esteem were lessened. More than oncein later years I did happen to do something for him. But itwas always in pursuit of my own view of things—in pursuitof the greatest happiness principle; and whatever was done,he knew nothing of it until after it was done. I shall returnto him presently.

[VIII] Another cause may perhaps have had its share inproducing the visit of Lord Shelburne to the assailant of theCommentaries: a breach (I mean) between the Lord and theCommentator. The fact was once mentioned, but I neverknew the time or the details. . . .

Blackstone seems to have had something about him that

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made breaches with him not difficult! [Bentham illustratesthis with a rather obscure anecdote relating to Blackstone’sbecoming Law Professor at Oxford university. Then:] LordShelburne had been the making of Blackstone. The Lordhad been in personal favour with George III. He introducedthe lecturer, and made the Monarch sit to be lectured: so hehimself told me. The lecturer, as anybody may see, showedthe King how Majesty is God upon earth: Majesty coulddo no less than make him a Judge for it. Blasphemy issaying anything that a Judge can gratify himself—or thinkshe can recommend himself to others—by punishing a manfor. If decking a man out with God’s attributes, and underthat very name, is blasphemy, none was ever so rank asBlackstone’s. The Commentaries remain unprosecuted; thepoison still injected into all eyes; piety is never offended by it,though perhaps it may be some day, if piety in high placesever ceases to be a tool of despotism ·and becomes genuine·.

I too heard the lectures: age, sixteen; and even then,no small part of them with rebel ears. The attributes, Iremenber, in particular, stuck in my stomach. No suchaudacity, however, as that of publishing my rebellion, was atthat time in my thoughts.

[IX] Now to Lord Camden. The preparatory mention of LordShelburne was needed to introduce his political associatesand advisers, and in particular Lord Camden, their chief.I was already at Bowood when the ex-chancellor and hisunmarried daughter made their appearance. The markedkindness and attention shown to me in that family couldleave no doubt about the manner in which I had been spokenof to the grave personage. From the very first, however,his manner of address to me seemed to express a sort of

coldness and reserve. [He never said a word to Benthamabout the Fragment, Bentham reports; but he twice publiclycriticised Bentham, once for playing too loudly in his violinaccompaniment of the singing of his (Camden’s) daughter,and once for eating too much. Bentham winds up hisaccount of Camden with an unflattering account of his mind:]

A man of such celebrity, and who had for so many yearsoccupied the first places in the law, could not fail to awakenin a man in my situation and of my turn of mind a desireto form some conception of the bent of his. I observed hisconversation. I observed the books he opened and set beforehim. I took [The original has ‘watched’; presumably a slip.] withparticular interest every opportunity of observing whetherthe system of law ever presented itself to his mind as being,in any part of it, capable of improvement. I never saw theslightest sign that any such conception had ever enteredhis head. Apart from an occasional anecdote relating tothe sphere he had always moved in, I heard nothing in histalk that might not have been heard in any drawing-room orcoffee-house.

[X] I come now to John Dunning. It was one evening afterdinner ·at Bowood· that he made his appearance. He camefresh from Bristol, where he was a judge. I found himstanding in a small group recounting his exploits. The natureof them—combined with the manner in which he spoke ofthem, and the feelings his countenance expressed—put me inmind of Lord Chief Justice Jeffries.1 He had been the deathof two human beings: he looked and spoke as if regrettingthere had not been two thousand. Upon my approach, hisscowl seemed more savage than before. At that time I hadno notion of the cause, but the effect was all too visible.

1 [‘1st Baron Jeffreys, Lord Chief Justice of the King’s Bench, notorious for the “Bloody Assize” following Monmouth’s abortive rising in 1685, whenmany hundreds were hanged, transported or whipped.’ (B&H)]

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[Bentham continues by recounting a rather recondite jokethat he made in Dunning’s presence and at his expense, akind of pun on ‘stone’, which could refer to kidney-stones orto 14 pounds weight. Dunning left the next morning. ‘I sawno more of him: I had seen quite as much as was agreeableto me.’ Then:] In conversation with Lord Shelburne once, Iremarked that

what Junius says about the practice of the long robe,when calls it ‘the indiscriminate defence of Right andWrong’, is not precisely true; because on the wholeWrong, in his quality of best customer, enjoys a prettydecided preference.

‘Naturally enough’, replied my noble friend: ‘and I rememberhearing it observed of Dunning that he never seemed to dothe thing so much con amore as when the wrong was on hisside.’

[XI] Last comes Colonel Barré. [Bentham outlines this man’scareer, in which he fell into and out of favour, spoke in theHouse of Commons on Shelburne’s behalf, and when Shel-burne ‘became Minister’ [perhaps meaning ‘became Prime Minister’,

which he briefly did], his ‘protégé’ was awarded a pension of£8,000 a year [which is equvalent to at least a million pounds today].Then:] Now as to what passed at Bowood between him andme. Towards others, his deportment was easy: towardsmyself, stately, distant, and significant. What (said I tomyself) can I do to propitiate this minor deity? Except fromthe sort of reports which give nothing but the surface, hewas altogether unknown to me. I had brought with metwo articles—an unfinished quarto in print, of which morepresently, and a manuscript of between a dozen and a scoreof pages. It was an attack upon Deodands.1 It defended the

conclusion thatWhen a man who has a child and a waggon loses thechild by the waggon’s going over it, the loss of thechild was enough, without the loss of the wagon’sbeing added to it.

The sages of the law have had and still do have a differentopinion about this, and so of course have those who worshipthem. ‘English’ are all our institutions: this as well as everyother.

When I presented the colonel with this specimen of En-glish institutions, I had no thought of encountering in hismind any very formidable adherence to it (he was after all asoldier, not a lawyer). —Vain confidence!

One day, finding him alone at the common reading-table,I put into his hand my little paper. A day or two after, Iventured to ask whether it had been looked at. ‘Mr Bentham’(said he) ‘you have got into a scrape. [This uses ‘scrape’ in

the then-current sense of ‘an embarrassing or awkward predicament or

situation, esp one arising from an unwise escapade’ (OED).]‘Scrape, Colonel? what scrape? I know of no scrape the

case admits of.’ No answer. The unfortunate paper waspocketed. I went my way, and there the matter ended.

The only interpretation I could ever find for the appallingriddle was this paraphrase:

‘You are a greenhorn: you know nothing of the world.You wrote that book of yours; you made your foolishattacks on the lawyers; you thought it would be atreat to us to see you running at them. You are a sillyfellow; you don’t know how necessary they are to us.What have we to do with Deodands? You thought tocut a figure; you have got yourself into a scrape.’

1 [This astonishing law, finally abolished in 1846, required the forfeiture of any object—a wagon or a windmill or a pig—that causes the death of ahuman being. The name comes from the Latin Deo dandum, meaning ‘requiring to given to God’. The offending object was forfeited to the Crown,which was supposed to put it to pious uses.

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A confirmation that this interpretation received will be seenpresently.

[The ‘confirmation’ is reported at great and somewhattedious length. It boils down to this: someone told Benthamthat Barré had said ‘I am glad to see Mr Bentham turninghis hand to useful things’, referring to Bentham’s plansfor prison reform. Bentham reports some of the ups anddowns of Barré’s career, speaking of ‘the inaptitude of theshowy soldier’, including an occasion when Barré was facedwith a public embarrassment, from which Bentham neatlyrescued him, earning applause from all present, including‘the colonel, whom I had got out of this scrape’.]

[XII] The greatest happiness principle had been declared‘dangerous’, including every consistent appplication of it:this was from Alexander Wedderburn. Comes now a confir-mation by Lord Camden and Mr Dunning: words different,for so circumstances required: meaning the same. TheIntroduction to Morals and Legislation. . . .had been printed.In the trunk that accompanied me to Bowood was a copy of it;it had not been long there before it was in Lord Shelburne’shands.

I begged him not to treat the ladies with it at the breakfasttable, but in vain. Quite apart from the general nature ofit, in one particular it was especially unsuitable for such anaudience. In some eight or ten places the reader will meetwith the word sexual. When the word bolted out, some littleembarrassment was the result. [He explains that the wordwas a second-edition replacement for ‘venereal’, describesthe ‘tolerably adequate’ quick-fixes that were made to remedythe embarrassing situation, then:] There had not been manyof these readings when an influx of company put an end to

them, to my great relief.Before I left Bowood, Lord Shelburne—after remarking

on how new the subject was to him, and how ill-qualified hewas to appreciate a work in which so much depth of thoughthad been displayed—told me that he intended to submit it tomen better qualified than he was •to comprehend its meritsand to •derive the profit that was to be derived from it; andfor this purpose he specified Lord Camden and Mr Dunning.

Bowood [here presumably meaning the family whose home was

Bowood] had not been long in London when I received a visitfrom Lord Shelburne. ‘I will deal plainly with you’, (said he).‘I told you I should put your book into the hands of LordCamden and Mr Dunning. I have done so.’ Lord Camdenhad acknowledged its merits considered as a theoreticalwork, but he confessed that he had found some difficulty incomprehending it. ‘And if that is the case with me’, he said,‘I leave you to imagine how it may be with the general runof readers.’ Thus far Lord Camden.1 I don’t remember anydetails of Dunning’s opinion, but it was all too plainly of thesame cast.

Here was a second scrape; another work by that sameman by whom nothing ‘could be done for ’ the head of a·political· party; a work that had nothing to do with ‘usefulthings’. That is how incomprehensible it was to the wisest ofthe wise. It has not been so to babes and sucklings.2 Twoboys of sixteen have been giving a spontaneous reading toit [one of them was probably John Stuart Mill]. . . . It is the basis ofthe work in French for which so much use has been found,or at least thought to be found, in other countries. . . .

[XIII] One objection remains; and my hypothesis must ifpossible be cleared of it. [The ‘hypothesis’, as will become

1 The original has ‘Shelburne’; presumably a slip.2 [‘Psalm 8:2; but Bentham’s antithesis also echoes Matthew 11:25: “thou hast hid these things from the wise and prudent, and hast revealed them

unto babes.”’ (B&H)]

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clear in the ASIDE just below, is that there is a long-standingconspiracy among legislators, judges and lawyers to opposelaw-reform and bend everything in their favour. The ‘objec-tion’ is that the five named opponents may have objectedto Bentham personally, rather than to his ‘reforms andimprovements’. He deals with this briskly with regard toWedderburn, Mansfield and Barré, not with evidence thatthey liked him personally but with evidence that they reallywere hostile to his work. Then:]

For the two remaining cases, I must take other ground.If either or both of the two great lawyers ·Dunning andCamden· had been personally disgusted by the author, andso intensely as to create antipathy towards his work, thatdisgust would surely have been felt even more strongly by·members of· that sex whose sensibility in such a case isnaturally so much more acute.

·AN ASIDE ON THE PERSONAL AND THE POLITICAL·It is true that this:

what on individual occasions may have been the sortof sentiment produced in the mind of this or thatindividual of one sex by the person or behaviour ofthis or that individual of the other

is not in itself of any great political importance. But this:whether those who are obeyed (and paid) as guardiansof the happiness of the species are involved in a con-spiracy against that of which they are the professedguardians—a standing conspiracy, and a universalone until the Anglo-American United States providedone exception—

is no such trifle.

To close the evidence against the conspiracy, I must nowcall two ladies. [They are Miss Pratt, the daughter of LordCamden, and the wife of Mr Dunning. What Bentham reports

regarding them is confusing, and includes an allegation ofextremely bad behaviour by Miss Pratt aimed at Bentham;but somehow out of all this he draws the conclusion hewants:] Much of this is little to the purpose. But what isto the purpose is that in a family where whatever is best inaristocratic manners was at the highest pitch of refinement,any aversion the great law lords had to me was peculiar tothe confederacy, and was not shared in by those who, if therehad been any ordinary cause of ·personal· disgust, wouldnaturally have been most aware of it. [In this sentence, ‘the

confederacy’ refers to Camden’s and Dunning’s share in the conspiracy

that is the theme of this section and even more of the next.]

[XIV] A tolerably satisfactory solution (the reader may nowthink) has been given for the tardiness of the advances madeby Lord Shelburne to the author of the Fragment, coupledand contrasted with their cordiality when they were made.

What he goes on to say: On this hypothesis, the cognizancehe took of it was not less early than that of the lawyertribe, including his above-mentioned learned advisers. Hisdisposition, towards the author, was thereupon of the kindafterwards manifested. Meantime they, seeing to what it led,and looking upon their influence upon him as endangeredby it, concurred in the endeavour to prevent his making anysuch advances.

Made a bit clearer: Lord Shelburne was able to acquainthimself with the Fragment without having been beaten to itby his legal advisers; so he was free to adopt a favourableattitude towards its author, the kind he showed to the authorpersonally, once he met him, which he was hoping to do.Before long, his advisers—seeing what the Fragment led to,and seeing it as a threat to their influence on him—workedtogether in trying to prevent him from arranging such ameeting.

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At length came some incident or thought that led to his break-ing loose from their shackles. And then at last the youngintruder [Bentham, who was 28 years old] made his appearancein the circle. That triggered the practice (with or withoutconcert) of doing whatever was possible in that situationtowards keeping down his influence and preserving theirown views on political subjects from being supplanted byother views as opposite as they saw his to be.

In itself nothing can be less important than the littleintrigue was (if there was one) no-one can be more fullyaware of its unimportance than the person who was thesubject of it (if there was one). But with regard to the stateand form of government in this country, what it proves—sofar as it proves anything—is of considerable importance. Itis this:

Under the government under which we live, the par-ticular interest of the rulers is in direct opposition toalmost everything that is good: to all reform, to all con-siderable improvement. . . ., in short to the universalinterest. And, just as it is always in their inclination,so it is always in their power, to sacrifice that sameuniversal interest to that same particular and sinister[see Glossary] interest—sacrificing it continually andcomprehensively.

Under such a form of government, the ruler in all hisshapes •derives an advantage, immediate or unimmediate,from everything that harms the universal interest; •feels thatsinister interest assaulted by almost everything that rendersany kind of service to the universal welfare,1 and he seesanyone who tries to render such service as an adversary, notto say an enemy.

As for the lawyer: as well as the sinister interest that he

shares with all those who exercise the powers of government(in a government so constituted), he has another sinisterinterest, peculiar to his own tribe. It is an interest in thatsystem by which, while only a comparatively few have evena chance of justice, even those few are kept in a state ofoppression—oppressed by factitious delay, vexation, andexpense, created by lawyers (in the role of judges andlegislators) for the sake of the profiit extracted by the ·legal·fraternity out of the expense.

The consequence is a perpetual and indissoluble confed-eracy among the ruling few of all classes to defend themselvesand one another against all activities that oppose theirparticular and sinister interest by serving the universalinterest. Whatever be the state of the ·political· parties, theruling men of all parties are members of this confederacy;members linked together against the universal interest bythe particular and sinister interest that they all share; for,whatever may be the hostility of the two sinister interests toone another, the hostility of both to the only right and properinterest is much more extensive and unchangeable. Letany serious attack be made on anything that supports thesystem of corruption, depredation, and oppression, in whichthey have a common interest, and mutual hostility vanishes,giving place to alliance against the common adversary.

[XV] Only one piece of evidence more. It is however asweeping one. [He reports that he asked an intelligent,honest, unbiased friend of his—-who knew a great dealabout these matters at the time in question—whether, so faras he could see, ‘anything outside the field of the generalscramble for power ever found a place in the affections’ ofthe ‘personages’ he has mentioned here. And:] The answerwas clear, deliberate, and decisive: it was in the negative.

1 The original has ‘universal service’; presumably a slip.

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People may naturally wonder what sort of sensation mylittle work produced in the mind of the learned author whosegreat work is the subject of it. It happens to be in mypower to provide some small satisfaction to their curiosity.[He reports that someone asked Blackstone if he knew whothe author of the Fragment was, and Blackstone repliedthat all he knew was that ‘he is a Scotchman’. Then:] Theconjecture had much better grounds than those others thathave been mentioned [in section II above]. The Scotch mindswere less ill-suited than the English to the sort of businesshe saw done ·in the Fragment·. Because Scotch law isbased on Roman law, the range of legal thought amongScotch lawyers is necessarily much less narrow than itis among English lawyers. Their sinister interests, theirinterest-begotten prejudices, their reputation, are not sodirectly struck at by the blasphemies in the Fragment as arethose of their southern brethren. [He talks of specific waysin which Scottish law manages openly things that Englishlaw does in an underhand way. Also:] Having less need ofinsincerity than the English, language has with them beenless impudently insincere. When the English said James thesecond had abdicated his throne, the contrary being true inthe eyes of everybody, the Scotch said he had forfeited it.

[Bentham continues this theme with a joke. Blackstoneas a judge had been subordinate to Lord Mansfield, andMansfield’s initially favourable reception of the Fragmentmight have made Blackstone suspect that] the adversarywas a sort of sad dog, of the Scotch breed, set upon him bythe overbearing chief.

[Bentham reports that later editions of Blackstone’s Com-mentaries may have been improved a little by the criticsmsit had received. (Blackstone himself hinted as much, thoughwithout naming Bentham or the Fragment.) He notes thatthe Fragment didn’t lead to a lessening of the ‘currency’

of Blackstone’s work, and wasn’t itself a great publishingsuccess. This is natural, he says, because there are manypeople who want to know what the law is, but relatively fewwho care about what it ought to be.]

[XVII] We never met; but less than two years later we wereon better terms. The Penitentiary System has for its firstpatrons Mr Eden—(the Mr Eden above spoken of [page 61] andSir William Blackstone. They framed in conjunction—andwithout exposure to sale, circulated—the draught of a billfor that purpose. [Someone gave Bentham a copy of it,and he evaluated it in his A View of the Hard Labour Bill,published in 1778, and the same someone sent copies ofthat to Eden and Blackstone. Then:] The tone of this secondcomment—though free, and holding up to view numerousimperfections—was upon the whole laudatory: for my delightat seeing ever so little disposition to improvement, wherenone at all was to be expected, was sincere and warmlyexpressed. From Mr Eden, the communication produced ananswer of some length: cold, formal, distant, and guarded;written as a man writes when he feels something that heis not ready to acknowledge. No desire expressed of anyverbal communication. [Bentham remarks that Eden was‘on the eve of his departure for the now United States’, withthe official purpose of trying to re-shackle ‘the refractoryAmericans’. He goes on to boast that twenty-odd years latera nephew of Eden’s became of one ‘my declared disciples’and ‘a valued friend’. Then:]

From the judge I received a note which still exists, I be-lieve, somewhere; I have preserved the memory of everythingthat is material in it. After thanks and so forth, in the thirdperson, ‘some of the observations’ (said he) ‘he believed hadalready occurred to the framers of the bill’ (not mentioninghimself as one of them), ‘and many others were well deserving

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of their attention.’ To anyone—if there is anyone—who readsthis work and has also read the Fragment, the frigid cautionwith which the acknowledgment is thus guarded. . . .will nothave been unexpected.

That the Fragment was not unknown to either of themmay readily be imagined: if so, no-one who has read it willfind anything wonderful in their reserve.

[Bentham tells us that a friend said to him:]‘Bentham, don’t you feel now and then some compunc-tion at the thought of the treatment your Fragmentgives to Blackstone? Of all the men that ever sat ona Westminster Hall Bench, he is perhaps the onlyone that ever attempted anything that had the goodof the people, or the improvement of the law, forits object, independently of professional interest andparty politics—think of the treatment he has receivedfrom you.’

I did think of it. [What follows is clotted and obscure; butits general drift is to pour scorn on the prison reforms thatBlackstone was associated with, as intrinsically unworkableand anyway trivial compared with later reforms. Bentham

caps his refusal to feel bad about how he has treated Black-stone with a strikingly sceptical rhetorical question:] In whatinstance, by any supporters of ‘Matchless Constitution’, hasanything been done with the least tinge of good in it, ex-cept with. . . .the hope of defeating or obstructing somethingbetter?

[XVIII] ‘Such being the tendency, such even the effects ofthe work, what became of it? Why is it that until now notso much as a second edition had been made of it?’ Naturalenough questions! [Bentham undertakes to answer them. Headduces the lack of advertising, and the harm to his sales oftwo things: (i) a pirated edition in Ireland, and (ii) the failureto keep the secret of who the author of the Fragment was. Asregards (ii), for which Bentham blames ‘parental weaknesss’:while the secret was kept, the public could guess that theFragment was the work of ‘a great man’; after the secret wasout, they knew that the Fragment was the work of ‘a nobody’.That, Bentham indicates, lessened interest in the work, andalso helped encourage ‘the men of politics, and in particularthe men of law on all sides’, to do all they could to suppressit.]

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